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S< OU_158269>5 



Editor : Dr. Karl Mannheim 

Advisory Board: HAROLD BUTLER, C.B., Minis* in Charge of British Information Services atH.M. Embassy 
Washington, D.C. ; SIR ALEXANDER CARR-SAUXDERS, Dirtctor of tin London School of Etwrnto ' 
SIR FRED CLARKE. CAainnan, Central Adnsory Council for Education ; LORD LWDSAT OFBOtm 

Master of BalKol College, Oxford. 







First published in England 1946 




Printed in Great Britain by Butler & Tanner Ltd., Frome and London 


What the notions of" form " and " harmony " were 
to Plato, that the notions of " individuality " and 
" competition " were to the nineteenth century. 
God had placed his bow in the skies as a symbol ; 
and the strip of colours, rightly read, spelt " com- 
petition." The prize to be competed for was 
" life," Unsuccessful competitors died ; and thus, 
by a beautiful provision of nature, ceased from 
constituting a social problem. 

A. N. WHITEHEAD, Adventures of Ideas. 



PREFACE .......... ix 

II. INTEGRAL LIBERALISM . . . . . . . .21 


LIBERAL CONCEPTS . . . . . . . -51 




NOTES .......... 122 

BIBLIOGRAPHY . . . . . . . . 135 

INDEX .......... 139 


With the rise to power of the National Socialists in Germany 
liberal political institutions collapsed like a house of cards 
tumbled over by a gust of wind. The rapidity and completeness 
with which liberal institutions were destroyed suggested that the 
spirit in which these institutions were originally conceived had 
reached a heretofore unsuspected stage of inner degeneracy. 
For no nation, however severely beaten into submission, however 
cleverly seduced by the winning wiles of a master propagandist, 
would calmly submit, without resistance or civil war, to the 
wanton destruction of political institutions if these were securely 
and deeply rooted in the spiritual consciousness of the people. 
That it was possible expeditiously to annihilate liberal institutions 
without more than a murmur of dissent is eloquent testimony to 
the degeneracy of German postwar liberalism. 

How was it possible for prominent professors, judges, lawyers, 
and civil servants, who before 1933 were professed liberals, to 
accept, and some even to acclaim, a despotism that not only 
repudiates the fundamental postulates of liberalism but seeks 
actively to banish every liberal institution from the face of the 
earth ? It is the purpose of this study to suggest a possible answer. 

In 1837, when a Hanoverian government abrogated a constitu- 
tion it had sworn to uphold, that act met with vigorous popular 
protest, a protest that found intellectual expression in the now 
famous statement drafted by seven Gottingen professors. But in 
1933 those German intellectuals who did protest against despotism 
were conspicuous because they were comparatively few. In 1933 
there was no Dahlmann to ask, as he did in 1837, " Must I teach 
henceforward that the supreme principle of the State is that 
whatever pleases those in power is law ? As a man of honour, I 
would cease to teach rather than sell to my audience for truth 
that which is a lie and a deceit. 55 That there was no organized 
collective resistance in 1933 such as there was in 1837 suggests, 
not that the German intellectual of the twentieth century was any 
less brave or vocal than the intellectual of a century before, but 
rather that his liberal convictions were less securely and deeply 

In view of this the suspicion arises that liberalism was not 
murdered, as is often said, but that it commiitad .suicide. The 


suspicion arises that probably the death of the liberal ideology 
in Germany and the subsequent destruction of the institutions 
which were originally conceived and established to translate its 
aspirations into practice, is to be attributed less to the machinations 
of Hitler and the National Socialists than to the liberals them : 
selves. A desire to test the validity of this hypothesis motivated 
the undertaking of this study. And if liberalism, by some inner 
necessity to be found in the ideology itself, develops from some- 
thing live and vigorous to something decadent and degenerate, 
then this analysis, although confined for the purposes of this study 
to Germany, should have especial interest to those who are con- 
cerned about the survival of liberal political institutions wherever 

To ascertain when and how liberalism as an ideology became 
decadent in Germany is the purpose of this study. Except by 
implication I have not tried to answer the somewhat more 
difficult question why liberalism became decadent. Confronted 
with the formalism of a Kelsen, who, while asserting himself a 
liberal, in effect declares every state to be a Rechtsstaat, I have 
endeavoured to search further for the roots of his thought and to 
examine the development that produced him. The process of 
formalization that characterizes the decline of the liberal ideology 
is described in the pages that follow. 

Although, for the purposes of this study, attention has been 
focused primarily upon the development of ideas rather than 
institutions, I do not feel that my study is unrelated to practical 
political developments. I recognize a mutual dependence and a 
reciprocal influence between ideas and institutions, between 
theory and practice, between ideologies and practical politics. 
Ideas are not generated in a vacuum. They have a sociologi- 
cal, as well as a physical, background. In focusing attention 
primarily upon ideas I attempt to keep this in mind, but I am 
particularly aware that institutions, as the structural expressions 
of conceptual schemes, need a consistent ideational foundation 
if they are to enjoy a vigorous and live existence. 

Vigorous institutions require deep-rooted convictions. So 
long as there is a close correlation between the faith, the aspira- 
tions and ideals, of any particular society and the institutions that 
are established to translate those aspirations into practice, the 
order thereby created appears stable, rational, and orderly. 
When, however, this close correlation is lacking, when institutions, 
in the eyes of the great mass of people, fail to fulfil the faith which 


originally inspired them, the order becomes disorder, the system 
appears irrational and degenerate. Rationality itself, then, is in 
large measure a function of the relationship between man's faith 
and man's deeds, his " inarticulate premises " and his experience, 
his philosophy of life and his way of life. While I have directed 
my attention primarily to an analysis of the development of the 
liberal ideology, I have by implication, I believe, said something 
of significance about the development of liberal institutions. 
Political institutions are shaped, to a considerable degree at least, 
by man's conception of himself and of his place and function in 

If we recognize that liberalism in the Germany of 1933 was 
decadent the logical inference is that there must be some liberalism 
" as it ought to be." The word decadent itself suggests a 
departure from or perversion of original or integral ideas. If one 
acknowledges the degeneracy of post-war German liberalism as 
it found expression in the writings of men like Kelsen and Carl 
Schmitt (and one is forced to do so if he concedes that irresponsi- 
bility is incompatible with individual freedom) he must further 
concede that there is such a thing as liberalism integrally con- 
ceived. The notion of decadence presupposes it. 

Accordingly, the first task of my study has been the re- 
construction of liberalism as an integral system of ideas, the 
delineation of the idea of liberalism in the Platonic sense. Since 
definitions at best are but symbols of a process of thought, I 
have not endeavoured to define liberalism in succinct phrases but 
rather to distinguish it by describing in some detail the attributes 
that characterize it. In order to do so it has been necessary to 
examine the philosophical roots of liberal thought, to find the 
fundamental presuppositions that constitute its " inarticulate 

Thus, so far as my study is accurate, it should contribute some- 
thing to a more precise conception of liberalism. This is needed 
to-day and especially in the United States where practically every- 
one calls himself a liberal and embodies in the term all that is 
congenial to his particular way of thinking. It has been 
customary in this country to distinguish the continental meaning 
of the word liberal from the American use of the word. Now, 
although it has been fairly clear that when a contemporary 
American uses the word liberal he means something very different 
from the eighteenth-century continental meaning of the word, 
it has not been clear in a positive way what he actually means 


by it. This confusion is possibly the result of an uncertain, if 
not aberrant, conception of liberalism. For the sake of clarity, 
the word liberal should be used to describe one who believes in 
liberalism ; it should be more precisely defined than it is to-day 
or else it should be abandoned. 

After describing the fundamental elements of integral liberal- 
ism, as found in German thought and elsewhere, I have 
endeavoured to trace, through the works of representative German 
politico-legal thinkers, the process by which these elements were 
in part discarded and in part transformed into concepts with 
different meaning and implication. By tracing the dialectical 
evolution of fundamental liberal concepts I have tried to 
ascertain if there is some " law " of development peculiar to 

This analysis is based largely upon the writings of representa- 
tive German jurists. Since in Germany it was the jurists more 
than any others who concerned themselves with the problems and 
concepts of political thought it is impossible to make any clear 
and decisive distinction between political and legal thought, even 
if it were desirable to do so. I have made no pretence at ex- 
haustiveness, but I have tried to select thinkers and writings which 
appeared to me to be most representative of trends of thought 
characteristic of the period under examination. The broad 
general development has interested me more than the details of 
debates within particular schools of thought, the highway of 
thought more than the innumerable byways that lead from it. 

Throughout I have sketched the development of liberalism 
with particular attention to its elements as I believe them to be. 
I have been more interested, therefore, in the changing meaning 
and evolution of certain fundamental concepts than in the 
chronological, strictly historical, development of political ideas. 
The logical development of a concept rarely, if ever, corresponds 
to its chronological treatment by various writers, and, in order 
to clarify my analysis, I have abandoned the strictly historical 
method of examination in favour of a logical method. 

To some extent I have sought to correlate the development of 
liberal political concepts with similar developments in other 
fields. Such correlations are necessarily incomplete, but are 
intended only to indicate here and there that tendencies found in 
political-legal thought are not peculiar to this realm of thought 
alone. These correlations serve only to indicate that modes of 
thought found in political-legal philosophy are part of a general 


intellectual consciousness peculiar to the period and society under 

This study should be regarded as an interpretative essay since 
it makes no pretence to fathom what is an infinitely broad and 
fathomless subject. If, however, it suggests an interpretation of 
the development of liberalism which has remained undiscovered 
or neglected by other writers, it will have justified my efforts. 

For their friendly encouragement and constructive criticism I 
am indebted to Professors William S. Carpenter and Gerhart 
Niemeyer of Princeton University, under whose direction this 
study was originally begun and submitted as a doctoral disserta- 
tion at Princeton. I am particularly indebted to Professor 
Niemeyer, for it was his keen and original insight into the problem 
and his familiarity with German sources that guided me through 
a maze of literature and aided me immeasurably in the task of 
analysis. I owe a special debt of gratitude to my former colleague 
Professor Malbone W. Graham of the University of California 
at Los Angeles for a painstaking reading of the manuscript that 
helped me to avoid many errors of style and of thought. 

But it goes without saying that for any errors of fact or of 
judgment which may be found in the pages that follow I am alone 


January 26, 1943. 



. . . jenseits von Gut und Bose gibt es weder Recht noch 
Stoat. Nur durch konkrete Rechtsideale wird der kon- 
krete Stoat legitimiert und wesentlich integriert. 


Liberalism is the product of a climate of opinion that came 
into existence with the Renaissance and Reformation. - It is the 
political expression of an individualistic Weltanschauung. v As a 
political ideology born of a particular historical period in a specific 
sociological environment it is subject, like all such systems of ideas, 
to development, decline, and death. Elements of its doctrine 
may survive its demise as a dominant and consistent ideology but 
as a system of ideas it is necessarily subject to change with the* 
changes in the mode of thought and the sociological conditions 
that gave rise to it. 

For the ways in which men think about things, like the 
thoughts themselves, are conditioned, and in part determined, by 
the historical and sociological environment in which they live. 
Ideas are not generated in a mental vacuum. They are not 
drawn out of thin air magician-like by isolated individual minds. 
On the contrary, as Karl Mannheim has expressed it, every 
individual " finds himself in an inherited situation with patterns 
of thought that are appropriate to this situation, and attempts 
to elaborate further the inherited modes of response or to substitute 
others for them in order to deal more adequately with the new 
challenges which have arisen out of the shifts and changes in his 
situation." * 

Thought, however, involves a great deal more than the mere 
sensory awareness of one's physical and social environment. 
Thought is something more than sense perception, something 
more than a mere mechanical reflex expression of physical stimuli. 
For the same physical stimulus may produce a variety of responses 
just as the same kind of response may result from very different 
kinds of stimuli. The effect of physical stimuli upon individual 

1 For notes to Chapter I, see pp. 122-4. 


action depends very largely upon the context in which they occur 
and upon the relative value attached to them by the context and 
by the individual. 2 

Thought involves abstraction and conceptualization. The 
most detached thinker actually does something more than record 
" facts." Indeed, the ascertainment of facts would be impossible 
without some conceptual scheme in terms of which facts might 
be observed and ordered. The observation of facts requires not 
only sense perception but judgments as to value and significance. 
And even the scientist, who claims to be the most impersonal 
observer, necessarily must fit the data made available to him 
by his senses into some preformulated conceptual scheme. 3 

To understand the thought of any man, therefore, it is essential 
to know with what " freely invented " concepts he starts to 
know the point of view from which he observes and interprets 
life about him. It is necessary to know his premises as well as the 
conclusions which he draws from these. The things which he 
presupposes, which he may regard as self-evident, are as important 
to an understanding of his thought as are the ideas which he 
expresses and his manner of expression. Implicit assumptions, 
in other words, are as important as explicit assertions. 

/What applies to an individual's thinking is applicable as well 
to the thought of any particular historical period. As Whitehead 
has expressed it : " There will be some fundamental assumptions 
which adherents of all the variant systems within the epoch un- 
consciously presuppose. Such assumptions appear so obvious 
that people do not know what they are assuming because no other 
way of putting things has ever occurred to them." 4 We are 
incapable of recognizing and analysing the assumptions of a 
particular epoch so long as they provide a satisfactory explanation 
of our experience.^ The fact that men are now engaged in analys- 
ing the presuppositions underlying our own age, and indeed the 
fact that we are conscious of them, is probably evidence that they 
no longer provide the satisfactory link with experience which they 
have to this moment. That other ways of " putting things " 
have begun to occur to us characterizes an age of transition and 
presages the decline of a climate of opinion that has nurtured 
man's intellect since the Renaissance. 

^ As the presuppositions of an age change so the systems of ideas 
which are derived (in part) from these change. Liberalism is 
based upon presuppositions characterizing the individualistic 
Weltanschauung ; as these presuppositions are replaced by others, 


liberalism itself must give way to systems of ideas more congenial 
to the logic of the new premises. For example, liberalism could 
not have emerged in the Middle Ages, for there existed then no 
concept of individuality comparable to that of the modern age, 
and liberalism is premised upon this very concept. The logical 
dependence of liberalism upon certain fundamental premises or 
assumptions relates its development and existence to the develop- 
ment and existence of these underlying presuppositions. 

The existence of liberalism depends also upon certain sociologi- 
cal factors. It is related to these to the extent that modes of 
thought are related to a way of life. If liberalism is dependent 
for its existence upon values and modes of thought peculiar to 
the age of individualism, it is equally dependent upon a specific 
sociological environment. Liberalism required not only the 
existence of the concept of an autonomous individual but also an 
environment congenial to the exercise of individual autonomy. 
The values posited by liberalism would have been meaningless 
apart from an environment and institutions in which these values 
could find practical expression in everyday life. 


Since liberalism is premised upon the individualistic Weltan- 
schauung that emerged in the late fifteenth and sixteenth centuries, 
it is necessary to give some brief attention to the underlying 
presuppositions of that perspective. In this way the philosophical 
foundations of liberalism may be brought into sharper focus. 

^The period of the Renaissance and Reformation accelerated an 
intellectual movement that had its roots in the later Middle Ages. 
Interest in classical literature and civilization was stimulated as 
men sought to find in antiquity patterns of thought and a way 
of life applicable to the new situation, which was characterized 
by the crumbling of the universal Church, the rise of the nation- 
state, and the disintegration of the feudal economy. The 
Christian ideas of the Middle Ages were merged with Stoic 
conceptions of individuality to produce the individualism of 
modern times. v 

Reinhold Niebuhr emphasizes the novelty of this conception of 
individuality. He says : 

If Protestantism represents the final heightening of the idea of 
individuality within terms of the Christian religion, the Renaissance 
is the real cradle of that very unchristian concept and reality : the 
autonomous individual. . . . Ostensibly Renaissance thought is 


a revival of classicism, the authority of which is either set against 
the authority of Christianity or used to modify the latter. Yet classic 
thought has no such passion for the individual as the Renaissance 
betrays. The fact is that the Renaissance uses an idea which could 
have grown only upon the soil of Christianity. It transplants this 
idea to the soil of classic rationalism to produce a new concept of 
individual autonomy, which is known in neither classicism nor 
Christianity. 5 

Not only were individuals thought to be equal entities, equal in 
moral worth by virtue of God-given souls, but also they were 
thought to possess a reason, divine in origin, that was capable of 
restraining passion and emotion through the realization of a 
potential, rational, universal order. Just as the period of the 
Middle Ages was " an age of faith, based upon reason " so the 
modern age has been " an age of reason, based upon faith. " 6 

The attribution to each individual of an element of " divine 
reason " made it possible to ascribe a dignity and autonomy of 
will to every human being in a way that had not been possible 
in the Middle Ages. From this conception, moreover, there 
issued others equally important. As Troeltsch observes : 

Several conclusions are directly derived from this assumption. 
It explains the claim which the individual makes, and the duty which 
he admits, that Reason should be acknowledged to be the Natural 
which is also to say the Divine Law. Again, it provides the found- 
ation of all human legal institutions, which thus become directly 
identical, in the last analysis, with moral principles. Finally, it 
furnishes the ideal of a single organization or society of all mankind. 7 

During the Middle Ages all law was conceived as being of 
divine origin, for then the whole world was thought of as part of 
a harmonious universe that began and ended with God. Indi- 
vidual will was regarded as incapable of creation and, so far as it 
was recognized at all, it was conceived as participating in God's 
work only as an agent. Law was part of the divine plan and 
in no way dependent upon individual will or consent. The 
individual was free to sin but free in no other sense. The order 
of reality was created and influenced by God alone. As a 
consequence there was no conceivable conflict between the ideal 
and the real, between the objective and the subjective, nor even 
between real wills for if a will violated God's law it was no 
longer within the system, it was an act of sin. As a consequence 
there was no question of obligation in the modern sense. 

But in the sixteenth and seventeenth centuries, as a result of 
the new concept of individuality, and particularly of the concep- 


tion of the autonomy of individual will, men were conscious of 
an antinomy between will and norm, man and nature, what is and 
what ought to be. Unlike the medieval man who started with 
the conception of an immutable universal order embodied in 
God, they were conscious of an individual capable of creation, a 
man endowed with will and interests. Having turned from 
revelation to reason, men sought by rational methods to achieve 
again a harmony that the religious wars of the sixteenth century 
had failed to attain. 

/Men sought within the confines of human nature principles 
from which legal, moral, and economic forms might be deduced. 
Whereas the medieval man started with the conception of a 
Divine universal order, modern man started with the conception 
of individuality, of human nature. As a consequence natural 
law became separated in the sixteenth century from the authority 
of God and was based upon human nature. Grotius, for example, 
defined it as u ... a dictate of right reason, which points out 
that an act, according as it is or is not in conformity with rational 
nature, has in it a quality of moral baseness or moral necessity ; 
and that, in consequence, such an act is either forbidden or 
enjoined by the author of nature, God/' 8 It is not by revelation 
that one discovers natural law, but by human reason, v 

In short, the concept of individuality which emerged at the 
close of the Middle Ages emphasized several things : the inherent 
moral worth and spiritual equality of each individual, the dignity 
of human personality, the autonomy of individual will, and the 
essential rationality of men. It ascribed to human beings a 
creative function which had been denied in the Middle Ages. 
- ' In the Middle Ages there was no separation of private and 
public spheres of activity. There was no state in the modern 
sense, and hence no distinction between the " state " and 
" society." Feudalism, as a system of reciprocal rights and 
duties, was based upon personal, legal relationships, organized 
hierarchically. The distinction between political authority and 
personal rights was blurred. v 

With the disintegration of the feudal order, prerogatives of 
rulership, which earlier had been thought of as the private 
property of the ruler, were gradually transferred to the sphere of 
public administration. By virtue of the peculiar circumstances 
of the times, political authority necessitated the introduction of 
general systems of taxation, the creation of bureaucracies, and 
the employment of standing armies. Thus, gradually, the 


prerogatives of rulership became impersonalized. And when 
there was attached to these new phenomena, notably by 
Machiavelli, the concept of raison d'etat, the idea of the modern 
state emerged. > 

/As a consequence of this impersonalization of the political 
order, the individual acquired a sphere of autonomy such as he 
never knew in medieval society. This sphere, which now 
corresponded to " society," was set apart from the impersonal, 
public, political order which was the " state." The medieval 
problem of the relationship between ecclesiastical and secular 
authority was replaced in importance by the problem of the 
relationship between state and society, between the spheres 
of political authority and individual autonomy. Liberalism 
emerged as a specific answer to this problem. It could not have 
existed apart from these particular conditions. It cannot exist 
when this problem is no longer vital or meaningful. 


The essential postulate of integral liberalism is the absolute 
value and dignity of human personality. Now if individuals are 
moral entities, equal in value, they can submit to no will that is 
arbitrary or capricious. To do so would be to deny their moral 
equality, to deny the dignity which they possess as human beings 
endowed with reason. 

But authority is necessary to social order. How then can the 
two be reconciled ? Liberalism answered that the individual can 
only submit to an authority that is impersonal, objective, and 
eternal. He cannot submit to the will of another individual nor 
to any arbitrary authority. The only authority to which the 
individual can submit is to the impersonal authority of law. 

Integral liberalism, accordingly, does not espouse freedom for 
the individual from all restraint that would be license, not 
freedom. That would not guarantee freedom for every individual 
but lead inevitably to anarchy and finally to the imposition of 
the will of the stronger upon the others. On the contrary, 
liberalism espouses responsible freedom, freedom under the law, 
for only in this way can the freedom of each be secured. 

The content of this law is thought to be discoverable by reason. 
The limitation which integral liberalism places upon individual 
will consists of certain eternal truths and values transcending all 
individuals and discoverable by reason. In the seventeenth and 
eighteenth centuries these truths were thought to be embodied in 


a natural law derived from human nature. Positive law was 
conceived of as at once the product of will and the particular 
expression of a universal principle. The responsibility for making 
positive law conform to natural law devolved upon the individual. 
Individual will fashioned the particular law but its form and 
content were supposed to be derived from universal principles. 
One element was dynamic, the other static. Human will was 
free only within the limits set by values transcending individuals 
and objectified in natural law. The conception was very largely 
Platonic, for it conceived of individuals giving particular expression 
to universals. 

Integral liberalism bridged the gap between the natural 
liberty of the individual and the natural law of humankind, 
between subjective will and objective order, by the sense of 
obligation. The universal order of the Middle Ages required no 
individual recognition for its existence, but the universal order of 
the seventeenth century rested entirely upon the individual for 
its actualization. According to this conception, it is the duty 
of the individual to carry out the dictates of objective reason, 
subordinating passion and desire, in order to realize the potential 
order embodied in reason. The whole obligation for realizing 
order rests upon the individual, and more specifically upon 
individual conscience. 

Conscience is the keystone of the whole structure. Order is 
potentially embodied in truths and values transcending all 
individuals, but only dispassionate, objective reason can translate 
this potential order into actuality. The law is an ideal requiring 
concrete wills and concrete actions to be realized ; it is a form 
ready to be filled in by individual wills. Only conscience bids the 
individual to follow the dictates of reason rather than those of interest. 
At the basis of this conception of law is conscience (theoretically ethics] 
and upon the conscientiousness of individuals rests the choice between order 
and anarchy. 

Inherent in the notion of limitation were two theories, as 
Roscoe Pound observes : " On the one hand there was a theory 
of limitations upon human activities imposed by reason in view 
of human nature, on the other hand there was a theory of moral 
qualities inherent in human beings, or natural rights, demon- 
strated by reason as deductions from human nature." 9 The 
first theory had been worked out by predecessors of Grotius in 
the sixteenth century, derived in part from Stoic conceptions ; 
the theory of natural rights was developed, among others of his 


time, by Grotius. Having accepted the principle of Roman law 
that no individual should harm another, that he should give 
to each person his due, Grotius was faced with the problem of 
what constituted injury. 

He was forced to answer two questions, as formulated by 
Pound : " What is there in personality that makes aggression an 
injury ? What is it that constitutes anything one's own ? " 10 
Grotius, and those who followed him, answered natural rights 
" not merely natural law, as before, not merely principles of 
eternal validity, but certain qualities inherent in persons and demon- 
strated by reason and recognized by natural law, to which 
therefore the national law ought to give effect." n This was a 
new conception, a conception made possible only by presupposing 
the existence of individual entities equal in moral worth by 
virtue of God-given souls and endowed with an element of 
" divine reason." 

Rights, as conceived by Grotius and his contemporaries, were 
something substantive ; they were not simply formal. For a 
right, as Grotius defined it, was " that quality in a person which 
makes it just or right for him either to possess certain things or to 
do certain actions." 12 The end of law in the Middle Ages was 
conceived to be the preservation of the social status quo, but at 
the time of Grotius the end of law was thought to be the enabling 
of individuals to do things and possess things. The former 
conception stifled individual creativity ; the latter conception 
encouraged it. 12a 

Integral liberalism, as a political doctrine derived logically 
from individualism, implied, therefore : (a) A belief that social 
control is best secured by law rather than by command (this 
corresponds to the dignity of the individual which entitles him to 
be ruled by impersonal rules rather than by personal authority) ; 
(b) a belief in a natural order that embraces both the individual 
and the collectivity (the state) ; and (c) a belief that there is a 
sphere of rights, peculiar to individuals as human beings, beyond 
which the state cannot penetrate and for the preservation of 
which the state exists. These may be regarded as the criteria of 
integral liberalism. 

Inherent in the notion of natural rights is the notion of natural 
liberty, the idea that the individual is free from limitation from 
all other individuals and from the state. This was a develop- 
ment from the Christian tradition, from the idea that there are 
certain spheres of individual life, particularly the religious and 


ethical, which arc subject to limitation by God alone and never 
by the state. Now with the secularization of this idea, as it 
took place in the postulation of natural rights, particularly 
when the distinction between rights and interests was constantly 
blurred, anarchical tendencies emerged which, if not checked 
in some way, would lead to social chaos to a war of all 
against all. 

But to this subjective element in liberalism an objective one 
was counterposed. Not able to disregard the Christian tradition 
of which they were a part, Grotius and his successors believed 
that there were certain objective values, eternal truths, which 
were independent of individual will and interest. These they 
derived rationally from human nature or the " order of things." 
These objective values embodied in natural law constituted for 
Grotius and his contemporaries a limitation upon individual 

Actually, then, two different legal theories are advanced : on 
the one hand, there is the notion that law is the product of 
individual wills and the embodiment of individual interests ; on 
the other hand, there is the notion that law is the embodiment of 
eternal and absolute truths independent of either individual will 
or interest. In the first view men are conceived as submitting to 
law because they consent to, because their subjective interest 
compels them to do so ; in the other view, they submit to law 
because they recognize that it embodies certain absolute truths, 
that its content is just. 

The two theories arc logically independent of one another and 
self-sufficient. The force of historical circumstance merged them 
into one conception of law and for a time obscured their mutual 
inconsistency and independence. That Grotius and his contem- 
poraries were not aware of this is not difficult to understand when 
one considers the intellectual milieu in which they lived and 
thought. 13 

The new age necessarily placed the individual at the centre of 
its thought because it was particularly conscious of the reality of 
individuality. In every realm of activity men saw individuals 
creating things by their own energy. Behind law they saw 
individual will and interest. But at the same time they were not 
far enough removed from the medieval Christian tradition to 
believe that law was unrelated to absolute and eternal values. 
Their conscience, moulded by Christian teachings, told them that 
law could not rest upon expediency alone, that obligation was 


rooted in the consciousness of certain eternal truths rather than in 
expediency or convenience. 

They were unable, because of their Christian heritage and 
beliefs, to conceive of order as simply the product of the harmoniz- 
ing of individual interests and wills. The medieval conception 
of a divine order unified by the will of God lingered in their 
consciousness, and although they were aware of individuality, of 
individual will, in a way that no one was in the Middle Ages, 
they were incapable of conceiving of an order based upon this 
alone. Seventeenth-century mentality therefore merged the two 
concepts, despite their logical inconsistency and respective self- 
sufficiency, into one theory, which serves as a foundation for 
integral liberalism. 

Now so long as men believe in objective truth and value 
transcending individuals, independent of individual wills and 
interests, so long as conscience was given a valid role in realizing 
the potential order embodied in reason, liberalism remained 
integral. It remained integral because there existed some 
objective and substantial limitation to individual will. Arbitrari- 
ness was excluded ; responsible freedom was assured. When, 
however, men abandon the belief in transcendental standards, 
when the idea of objective truth and value is destroyed, liberalism 
becomes degenerate. The individualistic and subjective elements 
of liberalism are retained without the objective element that 
constitutes a limitation to arbitrariness. Freedom degenerates 
into license and irresponsibility, for freedom without responsibility 
is anarchy. 

Law is obligatory, according to integral liberalism, because of 
its contents. Its contents are derived by objective reason which 
is capable of discovering eternal truth. It is conscience that 
bids the individual to reason objectively. Now when belief in 
objective value is abandoned, law can no longer be obligatory 
because of its contents. Concrete restriction of power is 
abandoned and only a formal restriction is retained. Men arc 
no longer obliged to submit to law but compelled to do so. It is 
no longer conscience that dictates obedience but compulsion, the 
force behind the law rather than the content of the law. 
Physical compulsion is incompatible with human dignity and a 
purely formal restriction of power does not exclude arbitrariness 
or guarantee the preservation of human rights. A liberalism that 
espouses even by implication these ideas may properly be dis- 
tinguished from integral liberalism and designated as degenerate. 


The logical structure of liberalism may be expressed diagram- 
matically as shown here. 



I I I I I I I I I I I I I I 


When, however, with the infiltration of positivism into all 
realms of thought, belief in the existence of eternal truths and 
values is lost and conscience is denied a valid role in the scheme 
of things the " liberal " is driven by his own logic to either of two 
conclusions : to make the sovereign absolute (tyranny) or to make 
the individual absolute (anarchy). The acceptance of a posit- 
ivistic point of view drives the liberal to an espousal of irrespon- 
sibility either on the part of the state or on the part of the 
individual. For with the denial of values as positive facts, with 
all transcendental limitations to individual will denied, only a 
part remains (as shown in the accompanying diagram). The 
relationship between individuals and the sovereign can no longer 
be regarded as a contractual one, for no means of interpreting 
the contract arc left. Since justice is a metaphysical concept the 
positivist " liberal " cannot evaluate the acts of the sovereign in 


I I I I I I I I I I I I I I 


terms of justice or injustice. Since he denies the existence of 
eternal absolute human rights he cannot evaluate the acts of the 


sovereign in terms of these. All basis of obligation, as a matter 
of fact, disappears ; compulsion is substituted for obligation. 
The positivist " liberal " has no choice but to make the sovereign 
or the individual absolute. Ultimately his own logic forces him, 
whether explicitly or not, to an espousal of either tyranny or 
unbridled subjectivism. 


If liberalism is dependent upon modes of thought peculiar to 
the age of individualism, it is equally dependent upon specific 
sociological conditions for its existence. For liberalism is not 
only a mode of thought, it is a way of life. If its existence 
requires the concept of the autonomous individual, it demands as 
well an environment congenial to the exercise of individual 
autonomy. As social and economic conditions change so as to 
preclude the exercise of individual autonomy, liberalism as a way 
of life must give place to a new way of life. S* 

As a way of life, liberalism reflected the intellectual, social, 
economic, and political aspirations and ideals of the rising com- 
mercial classes. In consequence the relationship between 
liberalism and capitalism was an intimate one. But it would be 
a mistake to see in liberalism only a convenient rationale for 
capitalism. For the liberal ideology was something more than a 
mere excrescence or mental reflex expression of an economic 
system. It was the embodiment of the seventeenth-century 
mentality and as much a cause as an effect of the economic 
system that was developing at that time out of the collapse of 
feudalism/- It was not simply an economic philosophy and way 
of life but a political, social, and intellectual philosophy and way 
of life as well. Liberalism and capitalism, moreover, developed 
concomitantly and simultaneously. And since capitalism is as 
much a system of ideas as it is a way of doing things it was as 
much the product of the mentality of the rising commercial 
classes as the mentality was the product of the system. 14 Both 
liberalism and capitalism are derived from the individualistic 
Weltanschauung that came into existence with the Renaissance and 
the Reformation. 

Liberalism does have a specific sociological background but 
this includes a great deal more than economic factors. These 
constituted but one element of many influencing the mentality 
and institutions of the time. The arts, religion, science, and 
learning all contributed to the fostering of the mode of thought 


that gave rise to the liberal doctrine. Economic motives un- 
doubtedly influenced the rising commercial classes but religious, 
social, and political motives were equally important. 

The early bourgeois was unsatiated, adventurous, confident, 
dissatisfied with the status quo and revolutionary. He was 
impressed not only with the potential creativeness of individual 
will but also with the dignity of human personality. His espousal 
of the rights of man was not simply the expression of a convenient 
conviction but of a belief in a way of life that he tended to regard 
as self-evident, but, if self-evident, yet not to be taken for granted 
but to be fought for. 

If he rebelled with vehemence against the economic shackles 
imposed by mercantilism, he protested with equal fervour and 
conviction against arbitrary political power, Star chambers, 
lettres de cachet, inhuman treatment, and arbitrary restraints on 
his personal liberty. He was opposed to an aristocracy of birth 
not simply on economic grounds but as a matter of principle. 
He believed with conviction that certain actions and procedures 
violated the dignity which individuals possessed as human beings. 
This conviction was as much a part of his mentality as the desire 
for profits. If later on there was to be some conflict between the 
two attitudes, the rising commercial classes of the seventeenth 
and eighteenth century, at least, were not conscious of it. 

The liberties which they demanded were not abstract liberties, 
for the rising commercial classes were rebelling not against in- 
justice in the abstract but against specific actions, against concrete 
injustices. They did not protest against restraint of individual 
freedom in the abstract but against specific restraints. The 
concept of justice which they held was derived from innumerable 
specific instances of specific injustice. In Germany, for example, 
restraints like those imposed by the infamous Carlsbad decrees 
embodied all that the rising commercial classes regarded as 
unjust, and against such restraints they rebelled with passionate 

\/So long as the bourgeoisie remained economically, socially, 
and politically unsatiated they championed the substantial rights 
of man. As the social and economic system changed, as monopoly 
and finance capitalism replaced free enterprise and divorced 
control from ownership, and as the bourgeoisie acquired a 
dominant social and political position, they tended to espouse 
formal equality and formal rights of citizens rather than sub- 
stantial equality and substantial rights of man. Legal rights 


tended to replace natural rights, equal application of the law 
tended to replace equal justice as a dominant concept, and 
freedom came to be regarded as freedom from illegal, but not 
necessarily unjust, compulsion, v" 


Detailed proof of the existence of integral liberalism in German 
political thought is given in the chapter which follows. It may 
simply be said here that since liberalism is the logical political 
expression of the individualistic Weltanschauung which has 
dominated all modern thought, it could not help but find manifest- 
ation in German political thought. And it did find in the thought 
of men like von Humboldt and Fichte, as well as in the thought 
of many of the men who attended the Constitutional Assembly 
of 1848, as fervent expression as it found in England and France. 

To the integral liberal the universe was a rational one ; it 
was pantheistic, and in place of the medieval dualism of a 
transcendent and a terrestrial world the new immanence philos- 
ophy posited the coincidentia oppositorum. God remained as the 
Creator, but no longer as the Regent, of the universe. In the 
seventeenth and eighteenth centuries mathematical and physical 
theory was in the ascendant and it was natural for men of that 
time, looking for God, to find him immanent in nature rather 
than materially transcendent. As a keen literary critic has 
observed : " The poets, like the astronomers and mathematicians, 
had come to regard the universe as a machine, obeying logical 
laws and susceptible of reasonable explanation : God figures 
merely as the clock-maker who must have existed to make the 
clock." 16 God was the Great Mechanic of a mechanism that 
ran by itself. 

Integral liberalism maintained that the less one interfered 
with this mechanical order the better. The government, there- 
fore, that imposed the fewest restraints upon individual activity 
was the best. And the liberal economist declared : laissez faire 
et laissez passer, le monde va de lui-mme. 

Towards the end of the eighteenth century, however, a 
reaction set in, a Romantic reaction that felt this conception of a 
fixed mechanical order to be a constraint upon individual activity. 
Romanticism, conscious to the extreme of the particularity of 
each occasion, revolted " against the whole of the mathematico- 
mechanical spirit of science." 17 It was, with poetic mysticism, 
" directed to the particular, the positive : to what is eternally 


productive of new variety, constructive, spiritually organic ; to 
plastic and super-personal creative forces, which build from time 
to time, out of the material of particular individuals, a spiritual 
Whole, and on the basis of that Whole proceed from time to 
time to create the particular political and social institutions 
which embody and incarnate its significance." 18 

The effect of this Romantic movement was manifold ; it 
extended in every direction and into every realm of thought. It 
stressed the importance of particular personalities rather than the 
common humanity of individuals. It stressed emotion rather 
than reason. It emphasized the collective mind, or Volksgeist, 
rather than individual reason. It focused attention on the 
nation, on national culture, rather than on the universal com- 
munity of mankind. 

In the realm of political philosophy it led to a conception of 
the state as " the embodiment and expression, of a particular 
spiritual world as it exists at a given time," and " the justice and 
law it enforces " as " particular and positive." 19 Law becomes 
relative to time and place, no longer universal, eternal, and 
absolute. " The moral code," moreover, " is distinguished not 
only from the rules of Law, but also from the demands and 
requirements of social well-being." 20 This Romantic perspective 
finds expression in historical jurisprudence, in the writings of 
men like Savigny and Puchta. 

Gradually, however, Romanticism gives way to positivism. 
In Germany the despotism that followed the War of Liberation 
and the added disillusionment that followed the collapse of the 
revolution of 1848 ushered in an age of realism, an age of 
Bismarckian Realpolitik. As Troeltsch observes : 

From the idea of the particular law and right of a given time, men 
proceed to a merely positive acceptance of the State : morality of the 
spiritual order, transcending bourgeois convention, passes into moral 
scepticism ; and the urgent movement of the German mind towards 
a political form and embodiment ends merely in the same cult of 
imperialism which is rampant everywhere. Caught in an obscure 
welter of motives, thought turned readily in the direction of Darwinism 
a philosophy which, distorted from the ideas of its author, was 
playing havoc with political and moral ideas in western Europe as well 
as in Germany. Henceforth the political thought of Germany is 
marked by a curious dualism. . . . Look at one of its sides, and you 
will see an abundance of remnants of Romanticism and lofty idealism : 
look at the other, and you will see a realism which goes to the verge 
of cynicism and of utter indifference to all ideals and all morality ; 
but what you will see above all is an inclination to make an astonishing 


combination of the two elements in a word, to brutalize romance, 
and to romanticize cynicism. 21 

The subjective individualism of the Romantic movement greatly 
influenced the mechanistic ideas of the eighteenth century 
although it never succeeded in replacing them, and when they 
were brought back into fashion again in the latter half of the 
nineteenth century it was with a different colouring. 

In the latter half of the nineteenth century it was biology, 
rather than physics or mathematics, that contributed to a some- 
what different conception of the natural order. The natural 
order was no longer conceived as a mechanism but as a biological 
organism. The result, however, was practically the same, for 
although this conception took cognizance of development and 
growth " it was the effect of the Theory of Evolution to reduce 
man from the heroic stature to which the Romantics had tried 
to exalt him, to the semblance of a helpless animal, again very 
small in the universe and at the mercy of the forces about him." 22 

Now the natural order, as conceived by integral liberalism, 
required individual reason for its realization, since it was a 
potential order secured transcendentally in objective reason. But 
the natural order of the nineteenth century was something quite 
different ; it was an immanent order which required no individual 
activity for its actualization. It was a product of materialistic 
forces which required neither reason nor an awareness of tran- 
scendental values for its existence. 

This conception of the natural order was in large part the 
product of scientific materialism, but it was also congenial to the 
nineteenth-century bourgeois way of life. Unlike their pre- 
decessors of the seventeenth and eighteenth centuries, the 
bourgeoisie were secure in political power, satiated, and content 
with the status quo. The conception of a static and immanent 
natural order provided them with the security and calculable 
certainty which they desired above all things. The bourgeoisie 
did not want change but preservation of the status quo, and if 
others clamoured for change and reform, they could answer that 
change and reform by individuals could accomplish nothing. 
One must let things run their inevitable course. 

This conception of the natural order was no less congenial to 
the way of life peculiar to nineteenth-century bourgeois society 
than the older conception was congenial to the revolutionary 
society of the rising commercial classes. Integral-liberal concepts 
were gradually formalized as the bourgeois attitude changed from 


an aggressive, unsatiated desire for individual autonomy to a 
satiated complacency and smug security which was put more and 
more on the defensive. Just as the concept of the natural order 
became formalized and abstract so the concepts of individual 
rights and of law became formalized and abstract. 

However, it was not only as a result of a change in the position 
and way of life of the bourgeoisie that these concepts became 
formalized, but also as a result of the application of positivist, 
scientific modes of thought to social and political phenomena. 
The great technological advances which the physical sciences 
made possible in the nineteenth century not only increased the 
prestige and authority of the scientific method but stimulated men 
in other fields, students of law and of sociology particularly, to 
apply the same method to the study of social phenomena. They 
hoped to achieve for their fields of investigation the same prestige, 
the same calculability and certainty as characterized the physical 

Natural law secured transcendentally and dependent upon 
rational recognition for its effectiveness was abandoned for a 
scientific " law of nature " secured immanently and effective 
independently of rational recognition. The existence of this " law 
of nature " could apparently be demonstrated empirically, whereas 
" natural law " could not be, and this made it infinitely preferable 
to men of an age dominated by empiricism. 

When applied to the study of law, the positive outlook of 
science, which in its extreme form denied the existence of values 
as scientifically relevant facts and which concentrated its attention 
on things which (it thought) could be observed without transcend- 
ing experience, ended by positing positive law as the sole law and 
by denying the existence of an ideal law to which positive law 
should be made to conform. Positivism saw law as the product 
of will and distinguished law by the coercive force behind it. 
Coercion, rather than content, became the distinguishing 
characteristic of law. 

The effect of positivism on liberalism was to encourage men to 
abandon a belief in objective values and thus to remove the 
limitation upon individual will which integral liberalism posited. 
Form rather than content occupied the attention of the positivist, 
and the legality of legal forms rather than the legitimacy of legal 
content was his chief concern. Technical efficiency and mech- 
anical certainty replaced justice as the end of law. But with law 
divorced from some concept of substantial justice the wav is 


prepared for social anarchy. Unless there is a conscious and 
voluntary affirmation of objective values for the attainment of 
which individuals will submit to a common authority, anarchy 
must inevitably follow. 

Integral liberalism maintained that certain rights belonged to 
individuals by virtue of their humanity. Such rights were 
antecedent to the state. With the infiltration of positivism into 
politico-legal thought, in the latter half of the nineteenth century 
through the writings of jurists like Gerber, Laband, and Jellinek, 
individual rights were conceived as legal rights. They were no 
longer thought of as rights of human beings but as rights of 
particular citizens. The implication was that as concessions on 
the part of the state, which willed them into existence, they could 
be contracted away or even abrogated, if the state so willed. 
Individual rights, therefore, were thought of no longer as 
concrete, substantive limitations upon will but as purely formal 
limitations. Concessions, properly speaking, are not rights at all. 

Positivism also tended to identify rights with interests. With 
the separation of law and ethics, legal rights tended to become 
identical with the stronger interest and will. Thus, by the turn 
of the century, liberty had become a formal concept, its content 
no longer determined by absolute values inherent in individuals 
as human beings but determined by the interests of the stronger. 

To integral liberals "justice meant the securing of absolute, 
eternal, universal natural rights of individuals/ 5 23 but to the 
nineteenth-century liberal it meant " the securing of the maximum 
of self-assertion." 24 The right of self-assertion was no longer 
deduced from the moral qualities or reasonableness of human 
beings, but was derived analytically from the abstract concept 
of liberty or was " found " in history. 

As a result of emptying the concept of law of all substantive 
content, law became formalized ; it became a mere formula 
suitable for any content. This, indeed, was the way in which 
the Neo-Kantians regarded it. Any government could be con- 
sidered as rechtsstaatlich that marked off the power of the state 
from that of the individual through a formal commandment of 
law although the greatest inequality and injustice might actually 
result. A " liberalism " that espoused this view might properly 
be described as degenerate. 

Emphasizing formal "equality before the law" and the 
general application of law as the criterion of a Rechtsstaat, late 
nineteenth-century " liberals," as exemplified by Hans Kelsen, 


were completely unconcerned with the just or unjust content of 
law. Procedure and the manner of enactment replaced justice 
as the criterion of law. Integral liberalism held that the state 
exists to preserve human dignity and individual autonomy, to 
attain values that are inherent in individuals as human beings. 
With "the sloughing off of objective values the atomistic and 
anarchical elements contained in liberalism came to the fore. 
The way was prepared for anarchy and for the dictatorship which 
is its political manifestation. 

As Fritz Ermarth points out, one condition is indispensable to 
the functioning of liberal democratic parliamentary institutions, 
namely, " a fundamental, integrating idea " which serves to unite 
all citizens, " minority as well as majority/' 25 With the form- 
alization and subsequent degeneration of the liberal ideology that, 
despite its own inner weakness and attacks from rival ideologies, 
served this integrating function throughout the nineteenth cen- 
tury, the uniform basis upon which the will of the German people 
could be formulated was destroyed. 

Intellectually and spiritually liberalism becomes degenerate 
by the acceptance of a positivistic point of view that destroys 
all objective limitation to subjective will. From such a point of 
view, individual rights no longer appear as objective, human 
attributes but as formal, legal concessions ; the " natural " order 
that embraces both the individual and the state is no longer a 
potential, rational order requiring individual effort and recogni- 
tion for its actualization but an immanent order requiring neither 
recognition nor individual effort for its operation ; law appears 
simply and in the last analysis as the command of superior force. 
By denying the existence of values as facts, by regarding value 
judgments as expressions simply of subjective, individual prefer- 
ence or choice, positivism fosters intellectual anarchy and nihilism. 
It is just such a milieu that breeds fascism. 

v But if the fundamental postulate of liberalism that of the 
absolute value of human personality is undermined intellectually 
by positivism, it is destroyed socially and economically by those 
contemporary social conditions and institutions that emphasize 
the undesirability, if not the impossibility, of individual autonomy. 
In a simpler age individual autonomy was not only an ideal 
but a fact ; in the complex, modern, industrial age individual 
autonomy is rapidly disappearing, both as a fact and as an ideal. 
And as conditions prove less and less amenable to individual 
efforts, the ideal of individual effort itself must necessarily appear 


impracticable. Without the ideal of the absolute value of human 
personality, without an environment congenial to the exercise of 
individual autonomy and responsibility, liberalism must, of 
necessity, disappear as a dominant and effective ideology. 

The following chapters indicate, in some detail and with 
specific illustrations, how the liberal ideology became degenerate 
in Germany. They emphasize the forces and elements within 
liberalism itself that eventually brought about its own self- 


Es ist kein schon'rer Anblick in der Welt, 
Als einen Fursten seh'n, der klug regieret ; 
Das Reich zu seh'n, wo jeder stolz gehorchl, 
Wo jeder sich nur selbst zu dienen glaubt, 
Weil ihm das Rechte nur befohlen wird. 



Liberalism is premised upon the assertion of the absolute 
moral worth of each individual. It is the political expres- 
sion of a comprehensive Weltanschauung, of an intellectual climate 
of opinion that has pervaded all realms of thought since the 
Renaissance. It is the theory of political order based upon 

The individual seemed the proper starting point for many 
reasons. First of all, the early liberals lived in a cultural 
climate that was essentially Christian. The idea of the supreme 
worth of the individual, of all individuals everywhere, was con- 
tributed by Christianity through the notion of the salvation of 
individual souls. Each man was equal in the sight of God. 
When the Reformation destroyed the concept of an intervening 
hierarchy or priesthood between the individual and God and 
set man and God immediately in one another's presence, indivi- 
dual personality acquired even greater significance. For, when 
the Reformation posited the Church as " a fellowship of believers, 
each the direct concern of God, each directly responsible to 
God, each guided by the illumination of God in his own heart 
and conscience, 5 ' l responsibility for salvation devolved directly 
upon the individual. 

This notion of the absolute value of human personality, of 
human dignity and worth, was coupled with the belief that all 
creativity springs from the individual. Ever since the Renais- 
sance, when man rediscovered his ego, he has been con- 
scious, as he never was in the Middle Ages, of his own will 
and of his power to create things for their own sake and for his 
own pleasure. As men turned from a theistic concept of God 
to a deistic concept (in which God was conceived as the Creator 

1 For notes to Chapter II, see pp. 124-7. 


but no longer as the Regent of the universe), it was possible to 
ascribe greater freedom of will to individuals. And when deism 
gradually gave way to pantheism and God became absorbed in 
the material world, still greater emphasis could be placed upon 
individual autonomy. As God was conceived less and less as a 
Creator, man was conceived as having more and more powers 
of creation. 

Wherever men looked they saw individuals creating things. 
Individual initiative seemed particularly creative in the 
economic realm. Here a new order was rising upon the ruins 
of an old -one by what appeared to be the sheer will and adven- 
turous daring of individuals. With the introduction of private 
enterprise and the replacing of a rigid system based on status 
by a more flexible system based on contract, individual initiative 
was given wider scope. The fetters of privilege based on birth 
and social position were rent asunder by rebellious individuals. 

The rising commercial class began now to talk about rights 
peculiar to individuals as human beings. They spoke of the 
right to possess things which they had acquired by their own 
labour, of the inviolability of the human body, of the freedom to 
speak and to write, of the right of peaceable assembly, and of 
the right of private property. But this was not only a convenient 
doctrine, it was one which actually reflected their way of life, 
their aspirations, and their mode of thinking. It was at once 
an intellectual doctrine derived logically from the premises of 
individualism and a reaction against specific abuses and injustices 
imposed by an absolute, mercantilist political and social order. 

Just as the natural scientist regarded atoms, so the political 
philosopher regarded individuals as irreducible, self-sufficient 
entities deriving their nature from themselves and not from their 
relationships. In both cases it is " essences," and not " func- 
tions," that are regarded as determining the nature of reality. 
That men should look for " essences," for irreducible elements, 
when attempting to analyse social life is understandable when 
one considers that the age which followed the Renaissance was 
dominated by the concepts and methodology of modern science. 
Having returned to an atomistic conception of reality in the 
physical sciences it was natural for men to apply similar con- 
ceptions in other fields. As Lindsay says : 

The great prestige of the new physical sciences produced con- 
tinuous attempts to apply their method to the study of man in his 
social relations. Such a scientific study of society will tend tt oreat 


individuals as independent units. Each will be regarded as an atom, 
something having its own nature complete in itself. If they are to be 
scientific units they will have to be atoms identical in qualitative 
character. Because the theory will be interested mainly in the laws 
of the combination of such units it will tend to regard the units as 
equal. 2 

But the doctrine of " human equality," he hastens to explain, 
" is in one sense not a scientific doctrine. 55 3 The doctrine rests 
essentially upon an ethical basis, upon the Christian concept of 
individual souls, and although the scientific method, as applied 
to the study of social relationships, gave assurance to an affirma- 
tion rooted in religious belief, it did not originate the concept. 
As the same author puts it : " The assumptions of scientific 
method . . . confirmed a doctrine whose real origin was in 
religious and not in scientific individualism." 4 

Individuals were conceived to be autonomous, each being a 
moral entity possessing an absolute value equal to that of every 
other individual, and it followed logically that arbitrary, cap- 
ricious authority over individuals was incompatible with this 
concept. If each individual was to be able to realize his full 
moral value, to command the respect due to him as a human 
being, he could not submit to any will that was arbitrary or 
capricious, for such submission would be a denial of moral 

Liberalism, as the political expression of individualism, there- 
fore espoused freedom for the individual from all personal, 
arbitrary authority. Starting from the premise of the absolute 
value and dignity of human personality, liberals necessarily 
demanded freedom for each individual from every other indivi- 
dual, from the state, from every arbitrary will. Only when 
liberalism coupled the contract theory with the belief in objective 
truth and value, transcending all individuals and binding upon 
each without promise, could it reconcile freedom from arbitrary 
authority with the idea of an ordered commonwealth. 

Liberalism in its integral form, therefore, starting from the 
premise of the absolute value of human personality, demands 
freedom for each individual from all personal, capricious, and 
arbitrary authority. Since freedom degenerates into license 
without some notion of responsibility and since submission to 
any individual will is incompatible with the postulate of human 
dignity and equality, it follows that freedom can only be secured 

aiithoritv. throueh a law that is found 


and not made. Integral liberalism, therefore, espouses freedom 
for each individual under the law, the law being conceived as 
embodying certain substantive and eternal truths transcending 
all individuals and binding upon each without promise. 


To understand how completely modern thought has been 
submerged in the Weltanschauung of individualism, it will suffice 
if a few examples, from various realms of thought, are given. 
Since individualism has permeated all thought since the Renais- 
sance, it is clear that every thinker of the modern age has made 
some concession to it. Individualism, as a climate of opinion, 
coloured the thought of all Western civilization ; it was not 
confined to one realm of thought alone or to any one particular 
nation. It found expression in Germany just as it found expres- 
sion in England, France, America, and the other nations of the 
Western world. The antinomy between body and soul, man 
and nature, the one and the many, object and subject (product 
of the individualistic Weltanschauung), was an antinomy with which 
all thinkers of all the nations of the Western world were concerned. 

Conservatives as well as liberals focused their attention on 
the individual, and even though the socialists seem, at first 
glance, to repudiate the prevailing Weltanschauung, in fact they 
do not. They accept, as do all thinkers of the age, the antinomy 
between man and nature, the one and the many, the individual 
and society ; they emphasize the social rather than the individual 
element, but they accept the same dichotomy. They view the 
same problem from a different angle. Probably it is only the 
functionalists who have rejected this Weltanschauung, and they arc 
of recent vintage. 

All modern thinkers, with the exception of the functionalists, 
have agreed in placing the individual at the centre of their 
thought. Most of them have posited a free- willed, autonomous, 
rational individual through whom alone creative forces could be 
put to work. Progress, until recently, has been considered as 
inevitable and as proceeding through the perfection of individuals. 
Progress, moreover, has been measured in terms of individual 
values, and although the socialists emphasize reform through the 
group, rather than by private initiative, the success of their 
endeavour is measured in terms of benefits to individuals. The 
betterment of individual conditions, spiritual and economic, is 
an essential aim of socialism. It does not abandon the individual 


but seeks rather to bring about conditions under which it believes 
the individual will be able to realize himself more fully, share 
more fully in material goods, and attain the economic security 
and well-being requisite to human dignity. 

Individual values have found their place in conservative 
Hegelianism and in Marxian socialism, as well as in liberalism. 
Some writers have emphasized the collectivity, rather than the 
individual, but they have been able to do so only by accepting as 
fundamental the antinomy between the one and the many. They 
have focused their attention on one side of a " two-headed coin n 
but they have been able to do so only by positing a " two-headed 
coin " to start with. Some writers have emphasized nature, 
rather than man, but they have been able to do so only by first 
presupposing a fundamental antinomy between man and nature. 
Some writers have emphasized man as a physical entity, rejecting 
his spirituality, but again they have been able to do so only by 
accepting a fundamental antinomy between soul and body. With 
the exception of the functionalists, all modern thinkers have 
started from this dichotomy. The differences between schools 
of thought have been differences in emphasis, not in conceptual 
presuppositions. These conceptual presuppositions are those of 
individualism, and it is in this perspective that all modern thinkers 
have endeavoured to explain and understand their physical, 
spiritual, and social environment. 

The doctrine of individualism has a parallel in the atomistic 
perspective of physical science. Until recently physical scientists 
believed that " it is possible to describe all natural phenomena in 
terms of simple forces between unalterable objects." 5 Indeed, 
" throughout the two centuries following Galileo's time such an 
endeavour, conscious or unconscious, is apparent in nearly all 
scientific creation." 8 

As late as the middle of the nineteenth century Helmholtz 
declared : 

Finally, therefore, we discovered the problem of physical material 
science to be to refer natural phenomena back to unchangeable 
attractive and repulsive forces whose intensity depends wholly upon 
distance. The solubility of this problem is the condition of the 
complete comprehensibility of nature. 7 

This mechanical view of natural phenomena, resting on the 
assumption of irreducible elements or atoms, found expression 
in the kinetic theory of matter, in the theory of electric fluids, 
and in the corpuscular and wave theories of light. 8 Atomistic 


ideas were introduced into chemistry by Lavoisier and John 
Dalton ; the " cell " theory found expression in biology through 
the work of men like Johannes Miiller, Schleiden, and Schwann, 
and was carried into the idea of " organism " by Louis Pasteur. 9 
Throughout the greater part of the nineteenth century these 
atomistic, mechanical theories remained practically unquestioned 
and dominant. All natural phenomena were thought of as 
being reducible to certain fundamental elements possessing 
certain attributes peculiar to them as particular and unique 

Similar notions pervaded other realms of thought. In re- 
sponse to the intellectual climate of opinion ushered in by the 
Renaissance and Reformation, theologians sought to overcome the 
rigidity of orthodox Christianity and to bring its principles into 
harmony with the dominant scientific thought and with the 
individualistic milieu. Liberal Protestantism " tended to brush 
aside all intermediaries priests and prelates ; sacred images and 
sacred relics ; saints, angels, archangels, and even the Blessed 
Virgin herself and so set God and the individual immediately 
in one another's presence." 10 Liberal theologians like Schleier- 
macher, for example, sought to make religion a matter of private 
feeling, an individual experience that did not rest upon intellectual 
demonstration or proof. 11 

Religion was made more and more a matter of private concern 
and the Church gradually became a kind of fellowship where 
individuals met to do homage to God in their own way. It 
tended to become a meeting place for individual worship rather 
than a symbol of the collective affirmation of certain religious 
beliefs. The doctrine of " private judgment " in time became the 
doctrine that each individual could believe what he wanted to 
believe, worship as he wanted to worship, and give expression to 
his religious convictions any way he saw fit. Liberal theologians 
placed more and more emphasis upon religion as an individual 
experience, and less and less emphasis upon the Church or the 
Bible as symbols or embodiments of divine truth. As one con- 
temporary theologian has expressed it : " The Reformation had 
granted to the individual the ' right of private judgment ' upon 
the meaning of the authoritative scriptures ; the Enlightenment 
went further, and made the individual reason and conscience the 
final court of appeal, supreme over all external authorities." 12 
With the destruction of the substantive content of conscience and 
the diminishing of faith in reason which took place in the latter 


part of the nineteenth and early part of the twentieth centuries, 
this " final court of appeal " tended to disappear. 

In the realm of economic thought the individual was similarly 
the focal point. One of the first to espouse the optimistic doctrine 
that the general welfare is nothing but the resultant of private, 
individual interests was Adam Smith. The point from which he 
begins his whole theory is the individual. It is enlightened self- 
interest, he believes, which should be given the greatest possible 
freedom from arbitrary authority in order to express itself and to 
realize the potential harmony embodied in the nature of things. 
For, he wrote, man in pursuing self-interest " is in this as in many 
other cases led by an invisible hand to promote an end which has 
no part of his intentions." 13 He believed, as Gide and Rist say, 
that " natural economic institutions are not merely good ; they 
are providential." 14 Without this belief in Providence, this 
belief in certain truths and values transcending individuals, 
Smith's " natural liberty " would be natural anarchy ; his " free- 
dom," license. To the anarchic element of his individualism 
he opposed this concept of a natural order filled with eternal, 
universal, and immutable truths. Individuals were to be free, 
but free only to realize the potential harmony embodied in 
nature. It was not license which he espoused but responsible 
freedom, freedom under the law, a law which he conceived to 
be natural and to have substantive content. 

It is significant, moreover, that Smith insisted on preserving 
the natural liberty of individuals and opposed strenuously every 
kind of collective enterprise, such as joint-stock companies, from 
which he believed individual self-interest was absent. 15 " The 
only exceptions which he would tolerate," write Gide and Rist, 
" are banks, insurance companies, and companies formed for the 
construction and maintenance of canals or for supplying great 
towns with water, for the management of such undertakings can 
easily be reduced to a kind of routine * or to such a uniformity 
of method as admits of little or no variation/ " 16 It was not 
freedom for corporations, but freedom for individuals, which 
Smith espoused. The end of economic action is the individual, 
and for this reason he should be let alone to follow the dictates 
of enlightened self-interest, to realize the potential harmony 
embodied in natural liberty. 

This view is echoed again and again in economic thought, not 
only in England but in France and Germany as well. 17 Not 
onlv were there economists in Germany, like Schlettwein 


1802) and Schmalz ( 1 760-1 83 1), 18 who espoused economic 
individualism before or at the same time as did Smith in England, 
but also there was a large group of German economists who 
became champions of Smith's ideas after they became known in 

One of the most ardent of this latter group was Christian 
Jakob Kraus (1755-1807), for a time a professor at the University 
of Konigsberg in East Prussia. He declared on one occasion 
that Adam Smith's Wealth of Nations was the most important 
book after the Bible. 19 His enthusiasm was shared by others, 
particularly by those reformers who were gathered around Stein 
and Hardenberg, and one of them, the Freiherr von Vincke, 
wrote in his diary that he made it a daily habit to begin each 
day's work by reading a chapter in the " divine Smith." 20 

Kraus, like Smith, focused his attention on the individual and 
said that the national economy should be thought of as the sum 
of the private economic enterprises of the individual members 
of the state. 21 He regarded the national economy as functioning 
primarily for the benefit of the individual and, like Smith, con- 
ceived of the general welfare in terms of the welfare of individuals. 
Similar views exhibiting a basic individualistic temper were 
expressed by German economists like Sartorius, Liider, Jakob, 
Hufeland, Soden, Lotz, and Rau. 22 The theories of all of these 
writers, as Kohler remarks, strive to attain one goal, namely : 
" die Wirtschaft durch den Geist der individualistischen Ethik zur Politik 
zu machen" 23 

In the realm of political theory, too, the individual was placed 
at the centre of thought. Professor Sabine sums it up well when 
he says : 

The individual human being, with his interests, his enterprise, his 
desire for happiness and advancement, above all with his reason, 
which seemed the condition for a successful use of all of his other 
faculties, appeared to be the foundation upon which a stable society 
must be built. . . . Not man as a priest or a soldier, as the member 
of a guild or an estate, but man as a bare human being, a " masterlcss 
man," appeared to be the solid fact. . . . Society is made for man, 
not man for society ; it is humanity, as Kant said, that must always 
be treated as an end and not a means. The individual is both logic- 
ally and ethically prior. To the philosophy of the seventeenth century 
relations always appeared thinner than substances ; man was the 
substance, society the relation. It was this assumed priority of the 
individual which became the most marked and the most persistent 
quality of the theory of natural law, and the clearest differentia of 
the modern from the medieval theory. Developed especially by 


Hobbes and Locke, it became a universal characteristic of social 
theory down to the French Revolution and maintained itself far 
beyond that date. It persisted, moreover, as a presumption in 
Bentham's School long after David Hume had destroyed the method- 
ology of natural rights. 24 

Perhaps one of the most ardent individualists among German 
political thinkers was Wilhelm von Humboldt. He wrote : 

Reason cannot desire for man any other condition than that in 
which each individual not only enjoys the most absolute freedom of 
developing himself by his own energies, in his perfect individuality, 
but in which external nature even is left unfashioned by any human 
agency, but only receives the impress given to it by each individual 
of himself and his own free will, according to the measure of his wants 
and instincts, and restricted only by the limits of his powers and his 
rights. 26 

His individualism was as extreme as that of Spencer and Mill 
(who was greatly influenced by von Humboldt) in England. 
But his belief in the moral uniqueness of individuals, his desire to 
treat each individual as an end in himself, was shared by many 
Germans and particularly by Kant and Fichte. 

As a basic law of all human conduct Kant adopted the 
principle : " so act as to treat humanity, whether in thine own 
person or in that of any other, in every case as an end withal, 
never as a means only." 2G And Fichte declared : " Whatsoever 
does not violate the rights of another, each person has the right 
to do, and this, indeed, constitutes each person's right. Each 
one, moreover, has the right to judge for himself what is, and to 
defend, by his own powers, what he so judges to be, the limit of 
his free actions." 27 

We have seen that the concept of individuality permeated the 
whole fabric of thought which emerged with the Renaissance. It 
is found in science, in theology, in economic and political theory ; 
it is found in England, in France, and in Germany. 


From the presupposition that individuals are moral entities it 
followed logically that they must have some inviolable rights as 
human beings, that they are entitled as human beings to do cer- 
tain things and to possess certain things if they are to realize their 
potentialities as individuals. Although there was some idea of 
rights peculiar to corporations and groups in the Middle Ages, 
the idea of natural rights peculiar to individuals first emerged 


as a definite concept in the seventeenth century. Since by that 
time the concept of God was gradually being replaced by the 
concept of nature, as deism replaced theism and in turn was 
giving way to pantheism, men called the immutable rights which 
they believed to be inherent in individuals by virtue of their 
humanity, natural rights. 

By the thinkers of the seventeenth and eighteenth centuries 
" natural rights were felt to rest on the same basis as Newton's 
discoveries ; and reason discerned these rights despite their daily 
violation, just as reason discerned the true movement of the earth 
despite its apparent immobility." 28 These rights were generally 
stated to consist of the right to life, liberty, and property. As 
gradually codified, they included such rights as freedom of 
worship, of speech, of press, and of assembly. By most of the 
writers of the age the existence of these rights was considered to 
be more or less self-evident, inherent in the nature of man and 
demonstrable by reason. 

Belief in natural rights was essentially " an assertion that 
certain human desires have greater validity than, and must 
therefore prevail over, force of circumstances or mere being." 29 
And the fact that they were said to be grounded in human nature, 
that they were deduced in a sense from the nature of things, gave 
them " something of the prestige of physical, earthly existence " 
and the doctrine " could claim to be both a standard and a 
fact." 30 

Many writers, in endeavouring to prove the existence of 
natural rights, posited the existence of a " state of nature " ante- 
cedent to civil society in which individuals lived in a " natural " 
state and possessed rights which were peculiar to them as human 
beings. Locke, for example, posited a " state of nature " in 
which reason ruled supreme, and he believed that it taught those 
who would consult it " that being all equal and independent, no 
one ought to harm another in his life, health, liberty, or posses- 
sions." 31 It is important to realize that the early liberals did 
not conceive of the right to property as did the nineteenth-century 
liberals. Property was defined by Locke, for example, as that 
with which one had mixed his labour. It was not the right to 
receive dividends from stocks and bonds that the early liberal 
demanded, nor the right of impersonal business corporations to 
do with " their " property what they liked, but rather the right 
of a man to make himself economically secure by his own labour. 
The early liberal appreciated the fact that liberty without 


economic security was meaningless, and it was for that reason 
that he linked the right to property (to the fruits of one's own 
labour) with life and liberty. 

To seek to explain seventeenth-century liberalism in terms of 
nineteenth-century conceptions of property and individual rights, 
as many writers do, is to mistake a distorted form of liberalism 
for integral liberalism. In an over-zealous attempt to " explain " 
everything in terms of economic determinism, some writers, in 
effect, credit the seventeenth-century liberal with the ability to 
foresee social and economic developments of the nineteenth cen- 
tury, and, further, attribute to him the ulterior motive of providing 
a rationale for what was to take place two hundred years later ! 
If liberal concepts were used in the nineteenth century to justify 
economic licence, this is no indictment of integral liberalism, but 
more properly an indictment of those nineteenth-century 
" liberals " who perverted original liberal concepts to their own 

Locke presupposed that men were equal in the sense that 
each individual was a moral entity, an end in himself, and he 
posited the existence of rights deduced rationally from this pre- 
mise. " Every one," he wrote, " as he is bound to preserve 
himself, and not to quit his station wilfully, so by the like reason, 
when his own preservation comes not in competition, ought he 
as much as he can to preserve the rest of mankind, and may not, 
unless it be to do justice on an offender, take away, or impair the 
life, or what tends to the preservation of the life, the liberty, the 
health, limb, or goods of another." 32 

These rights to life, liberty, and property Locke regarded as 
inalienable, as attributes of personality, as essential to human 
dignity. They were binding, he believed, on both society and 
government, and should the government attempt arbitrarily to 
dispose " of the lives, liberties, or fortunes of the people " he 
thought that the people were justified in dissolving the old govern- 
ment and acquiring a new one, by revolution if necessary. 33 

So strong was this belief in rights peculiar to individuals as 
human beings that it survived attacks made on the rationalistic 
basis upon which those rights had been originally posited. Even 
when the rights were no longer regarded as " natural," their 
existence was not questioned. Belief in a system of rights peculiar 
to individuals, although " explained " and justified differently, 
extended into the nineteenth century. Men like Bentham and 
Mill, for example, thought that individual rights were simply a 


matter of historical fact, that Englishmen had always possessed 
such rights. They justified them on the grounds of history, utility, 
heredity, and so forth. 34 However they explained and justified 
these rights, few thinkers in the eighteenth and the early part of 
the nineteenth centuries doubted that individuals did possess 
inalienable rights peculiar to them as human beings. This was 
true not only in England but also in France, in Germany, and, 
indeed, throughout most of the Western world. 

In France the doctrine of natural rights found eloquent and 
practical expression in the famous Declaration of the Rights of 
Man and 'Citizen of August 26, 1789. The preamble to that 
declaration asserted : 

The representatives of the French people, organized in National 
Assembly, considering that ignorance, forgetfulness, or contempt of 
the rights of man, are the sole causes of the public miseries and of the 
corruption of governments, have resolved to set forth in a solemn 
declaration the natural, inalienable, and sacred rights of man, in 
order that this declaration, being ever present to all the members of 
the social body, may unceasingly remind them of their rights and 
duties ; in order that the acts of the legislative power and those of the 
executive power may be each moment compared with the aim of 
every political institution and thereby may be more respected ; and 
in order that the demands of citizens, grounded henceforth upon simple 
and incontestable principles, may always take the direction of main- 
taining the constitution and welfare of all. 

And even Rousseau, who wavered between authoritarian 
collectivism and extreme individualism, on one occasion 
declared : 

To renounce one's liberty is to renounce one's quality as a man, 
the rights and also the duties of humanity. For him who renounces 
everything there is no possible compensation. Such a renunciation is 
incompatible with man's nature, for to take away all freedom from 
his will is to take away all morality from his actions. 35 

Earlier, in Germany, Christian Wolff was likewise espousing a 
belief in rights peculiar to individuals as human beings. 
" Nature,'* he wrote, " makes it incumbent upon men to perfect 
themselves." 36 Since the primary command of nature is " per- 
fect thyself," one should perfect himself both morally and 
physically. Men have three duties, a duty to themselves, a duty 
to their fellow-men, and a duty to God, and since duties imply 
rights it follows that there are certain inalienable and inherent 
human rights. 37 

Similar views were held by von Humboldt. In order that 


the individual might be given the greatest possible freedom to 
perfect himself, von Humboldt urged that all restrictions on 
individual freedom be removed except those that were essential 
" to prevent encroachment upon his rights." 38 And Fichte asks : 
" What constitutes a free person, or what is requisite to make a 
person free ? " 39 He answers that it is the possession of certain 
rights. These rights, he says, " are involved in the mere concep- 
tion of the person, as such, and in so far are called Original [or 
inalienable] Rights." 40 


Starting, then, from the assumption that each individual is a 
moral entity possessing certain substantive rights by virtue of his 
humanity, it follows logically that each individual ought to be 
free to develop all his potentialities as a human being. And 
since arbitrariness is incompatible with human dignity any sub- 
jection to the will of another individual, to the will of any personal, 
capricious authority, is incompatible with the idea that each 
individual is an autonomous being, equal in moral value with 
every other individual. 

Freedom, however, logically implies responsibility. In order 
for each individual to have freedom, all individuals must recog- 
nize some common authority, some common responsibility. This 
authority, moreover, must be impersonal, calculable, and objec- 
tive. Only through the acceptance by the individual of a 
common, impersonal, rational, and objective authority can the 
individual be said to be free. 

When men of the seventeenth and eighteenth centuries were 
confronted with this problem of freedom, explicitly or implicitly 
they reasoned in this way. Writing and thinking in an age 
that focused its attention on the individual as a moral entity, 
in an intellectual climate of opinion that espoused the individ- 
ualistic Weltanschauung in every field of thought, they were 
compelled logically to the conclusion that freedom from personal, 
arbitrary, authority was essential to the dignity of human 

But the problem of freedom was more than a theoretical one, 
more than a logical deduction from presuppositions which they 
consciously or subconsciously accepted as eternally true. In- 
dividuals of the seventeenth and eighteenth centuries were hedged 
in and restrained politically and economically by arbitrary and 
personal authorities. This restraint not only impeded the expan- 


sion and development of free private economic enterprise, but 
also it appeared incompatible with the dignity of human 
personality. The rising commercial class rebelled against these 
restraints. At first it supported the absolute monarchs, but as it 
became stronger and more self-assertive, it turned against them. 
Self-confident, eager for conquest, and adventurous, the com- 
mercial class found the restraints imposed by absolutism incom- 
patible with its economic, social, and intellectual aspirations. 
Arbitrary control of economic activity, especially when exercised 
by an absolute monarch, was unpredictable and unstable. 
Commercial activity could flourish only under conditions that 
were predictable, calculable, and stable. There must be some 
order, but this order needed to be impersonal, beyond the will of 
any arbitrary individual. 

In order to realize their conception of individual autonomy 
and in order to carry on their struggle against absolutism, the 
rising commercial classes needed freedom to express their views, 
to assemble freely, to be free from arbitrary arrest and imprison- 
ment, and to have a voice in the shaping of governmental policy. 
But their espousal of individual natural rights was more than a 
convenient doctrine ; they espoused civil liberties and representa- 
tive government because these things were essential if absolutism 
was to be defeated. In their own minds they probably did not 
separate the social and intellectual from the economic motives ; 
all these prompted their ardent advocacy of civil and political 
liberties, for all were present and sprang ultimately from the 
concept of individuality which emerged with the Renaissance 
and Reformation. Their attitude was at once the product of 
logical derivation from philosophic premises and of social and 
economic interests. It was at once a theoretical intellectual 
attitude and a practical expression of rebellion against concrete 
restraints and specific injustice. 

Liberalism was the political expression of this attitude. In 
its name one can discern the core of its thought freedom (libertas). 
Freedom from what ? Freedom from arbitrary, personal author- 
ity ; freedom from other individuals, from the state, from every 
authority that is personal or capricious. Intellectually it was the 
logical outgrowth of the individualistic Weltanschauung ; politically 
and economically it was the embodiment of reaction against 
mercantilism and absolutism. 



The central problem with which liberalism is concerned is the 
relation between the individual and authority. Liberalism holds 
that the individual should be free, but realizes that freedom 
demands the common acceptance of an impersonal authority if 
it is to be freedom and not license. Accordingly, liberalism 
espoused freedom from every form of social control except law. 
As Voltaire succinctly put it : " Freedom exists in being in- 
dependent from everything but law." 41 

The authority, which necessarily had to be impersonal, 
objective, and independent of will, could be nothing else than 
law. Law, moreover, had to be conceived as eternal, immutable, 
and rational. If the authority was not to be arbitrary, it could 
not emanate from any will that was capable of acting capriciously ; 
it could not change from day to day or place to place ; it must 
be rational and predictable. It was found, but not made, by 
reason and by conscience. 

Implicit in this reasoning is the assumption that positive law 
will conform to certain norms and values secured transcendentally, 
and the further assumption that the enforcement of law is purely 
impersonal and technical. In this assumption concerning the 
enforcement of law there is already an element of formalism, a 
quantitative conception of justice, but the notion of natural rights 
is a qualitative conception, and in the beginning this latter 
conception overshadowed the former. 

Accordingly, two essential elements are found in liberalism 
in its integral form : first, the belief that society is composed of 
atomic, autonomous individuals ; and, second, the belief that 
there are certain eternal truths transcending individuals and 
independent of either individual will or desire. These eternal 
truths are referred to by the writers of the seventeenth and 
eighteenth centuries as natural law or natural rights, but writers 
of the early nineteenth century arrived at a similar conception 
in somewhat different terminology. Positive law, in either view, 
is legitimate and capable of commanding obligation if its content 
conforms to the content of these transcendental truths. 

Positive law is not binding simply because it emanates from 
the legitimate sovereign, for the sovereign, like all individuals, 
is under a higher law. He cannot act arbitrarily and cannot 
make his will binding on other individuals unless his acts fall 
within the limits set by the higher law. The individual car 


know if the sovereign is acting justly if his acts fall within the 
limits set by law only through conscience, for it is by objective 
reason that the individual recognizes the content of law and 
conscience alone bids him reason objectively. Obligation, 
accordingly, rests essentially upon individual conscience. The 
contract does not bind the individual to obey blindly all the 
commands of the political sovereign, for if the sovereign acts 
unjustly, if he oversteps the limit set by law, the contract is 
void and his subjects may legitimately depose him. 

It is the duty of individuals to reason objectively, to sub- 
ordinate passion and desire, in order to recognize the limitations 
upon will which alone make freedom possible. The content of 
law is discovered by dispassionate reason, but only conscience 
obligates the individual so to reason. The link, therefore, 
between transcendental norms, which constitute the only limita- 
tion upon will, and individual will is conscience. 42 

One of the earliest modern writers to describe this concept of 
law was Grotius. In the early part of the seventeenth century 
he wrote : 

Natural law is the dictate of right reason. ... It is to be remarked 
that the law of nature deals not only with things which are outside of 
the human will, but also with things produced by the act of man. 
Thus property, as it now exists, is the result of human will ; but 
being once introduced, the law of nature itself shows that it is wrong 
for me to take what is yours against your will. . . . The law of 
nature is so immutable that it cannot be changed even by God him- 
self. . . . God himself cannot make twice two not be four ; and in 
like manner He cannot make that which, according to reason, is 
intrinsically bad, not be bad. 43 

Although he believed that the eternal truths embodied in the 
natural law were immutable, by man or God, at the same time 
he believed that they had their source in human nature, that is, 
that they depended for materialization upon the exercise of 
creative individual reason and conscience. " The mother of 
natural law," he wrote, " is human nature itself." 44 Right is 
what is in accordance with reason, and since man is endowed 
with reason by virtue of his being human, even if there were no 
God, the realization of right would rest entirely upon indivi- 
duals. 45 The link between subjective will and objective truth 
and value is human reason and conscience. The responsibility 
for realizing the potential order embodied in nature rests upon 
the willingness of individuals to reason rightly, to follow the 


dictates of reason and conscience. This is the cardinal element 
of the liberal conception of law. 

For the liberals, human conscience is the source of law and 
order. They start " from the conviction that man [is] not only 
a physical being, subject to natural laws, but also a moral being 
subject to his conscience . . . freedom [is] not arbitrariness but 
subjection to the moral nature of man, which is governed by 
the moral law. Freedom is accordingly only to be found in 
subjection to reason, that is to say, man is free only when all his 
actions are determined by reason." 46 

The immediate followers of Grotius in the seventeenth and 
eighteenth centuries differed somewhat from him in describing 
the content of natural law, but few, if any, doubted its existence 
and most agreed on defining it as the dictate of right reason. 
Just as the natural scientist of the age believed that there were 
universal, eternal principles governing the physical universe, so 
the political philosophers of the same period believed that there 
were similar principles governing human existence. In both 
science and philosophy, these principles were considered to be 
independent of human will, although discoverable by human 
reason. It was thus possible to equate jurisprudence with ethics, 
" to think of legal precepts as a specialized type of moral 
precept." 47 In the seventeenth and eighteenth centuries, as 
Roscoe Pound says, " jurists believed that a complete and perfect 
system of legal precepts could be built upon principles of natural 
law discoverable by reason and derived from the ideal of the 
abstract man." 48 

This law of nature was thought to be binding upon all indivi- 
duals, and although the concept of sovereignty which emerged 
in the sixteenth century might seem at first, by its definition, to 
contradict this principle, actually it did not. Bodin defined 
sovereignty as the " highest power over citizens and subject, 
unrestrained by laws." 49 But, in spite of the phrase legibus 
soluta, Bodin recognized, as Max Shepard has pointed out, certain 
very definite limitations upon the sovereign. 50 These limitations 
can be divided into three main categories : (i) leges naturae et 
divinae ; (2) jus gentium ; and (3) leges imperil. As Bodin wrote : 

... if we define authority as absolved from all laws, no prince is 
found to have the rights of sovereignty anywhere, since the divine 
law, and law likewise of nature, as well as the law common to all 
nations which has its reason derived from the law of nature and 
divine laws, holds all. 51 


In another place he observed : 

As for the laws of God and of nature, princes and people are equally 
bound by them. . . . What we have said as to the freedom of 
sovereignty from the binding force of law does not have reference to 
divine or natural law. 52 

There was no idea that the monarch was not bound by natural 
law ; on the contrary, he was as much bound by it as any other 
individual. The test of freedom was whether or not the legislator 
was subject to limitation, whether or not there was some limitation 
upon arbitrary will. If there were no such limitation, there could 
be no freedom. Freedom meant concrete and substantive limita- 
tions upon will, whether the individual will of a monarch or the 
collective will of a legislature. It did not mean a formal limitation 
but a substantive limitation. 

When legislative assemblies emerged and began to transfer to 
themselves the concept of sovereignty which had first been 
espoused for absolute monarchs, they too were thought of as 
subject to certain definite limitations imposed by a higher law. 
Locke made this particularly clear. He held that the legislature 
was the supreme branch of government, but he said : 

Though the legislative, whether placed in one or more, whether it 
be always in being or only by intervals, though it be the supreme 
power in every commonwealth, yet, first, it is not, nor can possibly 
be, absolutely arbitrary over the lives and fortunes of the people. 
A man, as has been proved, cannot subject himself to the arbitrary power of 
another. . . . The law of nature stands as an eternal rule to all men, legis- 
lators as well as others. The rules that they make for other men's 
actions must, as well as their own and other men's actions, be con- 
formable to the law of nature. 53 

Tyranny, for Locke as for other liberals, was not synonymous 
with autocracy but rather with despotism, A government might 
be highly centralized and autocratic but so long as it recognized 
substantive limitation to its will it was legitimate. " Wherever 
law ends, tyranny begins," Locke declared. 64 It was not the 
form of government which determined its legitimacy, though one 
form might be preferred to another, but whether there was 
personal, arbitrary rule or the impersonal rule of law. 

The idea of the liberal political philosophers that " the 
law " was a natural order filled with substantive content was 
shared by the economists of the seventeenth and eighteenth 
centuries, finding early expression particularly among the Physio- 
crats. According to one of them : " The natural order is merely 


the physical constitution which God Himself has given the 
universe." 66 " Its laws," according to another, " are irrev- 
ocable, pertaining as they do to the essence of matter and the 
soul of humanity. They are just the expression of the will of 
God." 58 Commenting on this conception Gide and Rist write : 

It was just because the " natural order " was " supernatural," and 
so raised above the contingencies of everyday life, that it seemed to 
them to be endowed with all the grandeur of the geometrical order, 
with its double attributes of universality and immutability. It 
remained the same for all times and all men. Its fiat was " unique, 
eternal, invariable, and universal." Divine in its origin, it was 
universal in its scope, and its praises were sung in litanies that might 
rival the Ave Maria.* 7 

The idea of a natural order is carried over from the Physiocrats 
into classical economics by Adam Smith and perpetuated by his 

The theologians were similarly abandoning a theistic concept 
of authority and accepting more and more an immanent authority 
in the form of certain principles. As one writer has expressed it, 
although they gave up " the belief in God's extraordinary and 
miraculous intervention in human affairs " they " laid all the 
more stress upon God's regular and orderly government." 68 
For the pessimistic outlook of orthodox Christianity they sub- 
stituted an optimistic outlook. Whereas the orthodox Christian 
looked upon sin as the root of all evil, the liberal theologians 
tended to regard ignorance as the root of evil. Sin could be 
removed only by God and by grace ; ignorance could be over- 
come by man through education. Orthodox theologians did not 
believe the world could be freed from evil, liberal theologians did. 
This optimistic belief in inevitable progress by education was 
shared by classical economists and liberal political philosophers. 

Thus, in the fields of political philosophy, economics, and 
theology, emphasis was placed in the seventeenth and eighteenth 
centuries upon an impersonal natural order which could be 
realized by human reason and conscience. On the one hand, 
there was the autonomous individual, on the other, the potential 
order objectified in eternal and universal principles with con- 
science and reason as the link between the two. 


These two elements found in integral liberalism, namely, the 
belief in politically autonomous, rational individuals, and the 


belief in eternal, universal truths secured in a natural order gave 
rise in Germany to a political concept which merged the two, 
the concept of the Rechtsstaat. Under the Rechtsstaat men were 
conceived to be free from all authority except that of law. Men 
were to be equally free from injustice and arbitrariness and equal 
before the law. Justice and legality were considered to be 
identical and to be independent of consent or personal will 
because the authority of law was essentially and completely 
impersonal and objective. Administration of the law was re- 
garded as more or less mechanical. 

The ideal of the Rechtsstaat is to provide each individual with 
the maximum possible freedom. Only law is to restrain him. 
An analogous idea is found in classical economics. Here each 
individual is to be given the greatest possible freedom from the 
state and from other individuals, and natural economic laws 
provide whatever regulation or restraint there is. As Adam 
Smith stated it : " Every man, as long as he does not violate the 
laws of justice^ is left perfectly free to pursue his own interest his 
own way." 59 The idea espoused is one of freedom, but not 
of license. It is the idea that all artificial, personal restraint 
should be removed that man might act in accordance with nature 
and its laws. It is a belief in a prestabilized social harmony 
embodied in the natural order. 

State regulation is considered bad because it interferes with 
this natural order. It is artificial and should function best as a 
negative agency, restraining and redressing injustice but taking 
no action to provide for the positive welfare of its citizens. 
Because there is a natural order embodying eternal, universal, 
and objective principles the government that governs least 
governs best. " Laissez faire et laissez passer, le monde va de lui- 

The way in which liberals regarded the function of the state 
is perhaps best illustrated by Wilhelm von Humboldt in his 
Ideen zu einem Versuch die Grenzen der Wirksamkeit des Staates zu 
bestimmen.** The title of the book itself states the central problem 
with which they were concerned, namely, how to determine the 
limits of the activity of the state. So significant and dominant was 
this problem in the eighteenth century that Humboldt declared 
that " the inquiry into the proper aims and limits of state activity 
. . . comprises the ultimate object of all political science." 61 
At this time it was a foregone conclusion among liberals that the 
activities of the state should be limited, there only remained the 


question of how these activities should and could be limited. 
That the government which governed least governed best was the 
premise from which all liberals started, for, as Humboldt declared, 
" those processes of human activity advance most happily to their 
consummation, which most faithfully resemble the operations of 
the natural order/' 8a 

The liberals denied that the state should exhibit any solicitude 
for the positive welfare of the citizen. " A state," wrote Hum- 
boldt, " has one of two ends in view ; it designs either to promote 
happiness, or simply to prevent evil ; and in this latter case, the 
evil which arises from natural causes, or that which springs from 
man's disregard for his neighbour's rights." 83 He denied that 
the state should endeavour to promote happiness in a positive 
way and argued that its function was simply to prevent evil, 
particularly the evil " which springs from man's disregard for 
his neighbour's rights." Humboldt listed three reasons why he 
believed state solicitude for the positive welfare of citizens to be 
harmful. First, he said, it " invariably superinduces national 
uniformity, and a constrained and unnatural manner of action." 64 
Variety is sacrificed and, although it may lead to " comfort, 
ease, and tranquillity," 65 these things are not what men strive 
for. The individual does not want " inertness and uniformity " 66 
but rather " the most perfect freedom of developing himself by 
his own energies, in his perfect individuality." 67 The second 
reason why he believed state paternalism to be harmful was that 
" state measures always imply more or less positive control ; and 
even where they are not chargeable with actual coercion, they 
accustom men to look for instruction, guidance, and assistance 
from without, rather than to rely upon their own expedients." 88 
Positive state action tended, he believed, to destroy individual 
initiative and self-reliance, and impeded individual self-realization 
and development. The third reason he gave was that " in 
proportion as each individual relies upon the helpful vigilance 
of the state, he learns to abandon to its responsibility the fate and 
well-being of his fellow citizens." 69 Individuals will not be as 
mindful of the welfare of others, he declared, if the state takes 
over a responsibility that is essentially an individual responsi- 
bility ; kindliness and philanthropy will be destroyed. States 
which try to provide for the positive welfare of citizens, he says, 
" too often resemble the physician who only retards the death 
of his patient in nourishing his disease. Before there were 
physicians, only health and death were known." 70 He implied 


that it was impossible for the state to cure an evil ; the best it 
could do was ameliorate it. The root of evil was found in 
individuals and they and they alone could overcome it. It was 
best to let the " diseases " of society run their inevitable, natural 
course. He concludes therefore that " the state is to abstain 
from all solicitude for the positive welfare of the citizens, and not 
to proceed a step further than is necessary for their mutual 
security and protection against foreign enemies ; for with no 
other object .should it impose restrictions on freedom." 7l 

Individuals need freedom in order to preserve their dignity 
as men, 'but they also need security, Humboldt declared. By 
security he meant protection from " attacks of foreign enemies " 
and " the danger of internal discord." 72 These are things 
" which man is wholly unable to realize by his own individual 
efforts." 73 The state must perform these negative functions, 
for without security there can be no freedom, but the state has 
no other purpose, he declared. It " is not itself an end, but is 
only a means towards human development." 74 By providing 
security the state allows individuals to perfect themselves in 
freedom, and it may never " make man an instrument to subserve 
its arbitrary designs," nor " induce him to neglect for these his 
proper individual ends." 75 The state has no other purpose than 
to provide a milieu for individual advancement, it is a means for 
the attainment of ends which are essentially individual. 

" It is evident," Humboldt wrote, " that political activity 
can only extend its influence to such actions as imply a direct 
trespass on the rights of others ; to the task of deciding in cases 
of disputed right ; to redressing the wronged, and punishing 
the wrongdoers." 7 * The state exists to protect and guarantee 
individual rights, to uphold the dignity of personality, and to 
provide the conditions of the greatest possible individual freedom. 
The state should exhibit positive solicitude for the welfare only 
of those persons who .are not in possession of their " natural 
faculties " such as immature persons and those who arc mentally 
deranged or deficient. 77 

Humboldt declares that security might be defined as " the 
assurance of legal freedom," 78 or, in other words, freedom under 
the law. Men should know what they can and cannot do, and 
the state should protect the rights of the individual, and redress 
the violation of those rights. Presupposed in this idea is the 
notion of impersonal law. 79 

It was out of this concept of law, as I have said, that the idea 


of the Rechtsstaat evolved. The Rechtsstaat embodies the idea of 
constitutional government, which Mcllwain characterizes as 
" limited government." * Constitutional government does not, 
Mcllwain insists, necessarily mean weak government, nor is it 
inconsistent with autocratic government, for any government that 
recognizes substantive limitations upon its authority may properly 
be regarded as constitutional. As Mcllwain says, the law which 
defines the limitations may be customary, unwritten, or embodied 
in a written document, but in any case there must be " a law that 
puts bounds to arbitrary will. 5 * 81 That is a characteristic of 
constitutional government and of the Rechtsstaat as well. The 
opposite of constitutional government is not autocracy, which 
might be regarded as " unmixed government," but rather 
despotism, that is, " lawless government." 82 Although in 
practice autocracy and despotism may tend to merge, they are 
not identical. 

The autocratic monarchs, although not controlled, were 
nevertheless limited. This idea that there can be limitation 
where there is no political control was expressed in the thirteenth 
century by Bracton when he said : 

The King himself ought not to be subject to man, but subject to God 
and to the law, for the law makes the King. Let the King then 
attribute to the law what the law attributes to him, namely, dominion 
and power, for there is no King where the will and not the law has 
dominion. 83 

" As moderns," Mcllwain writes, " ... we tend to fix our 
attention on the legitimacy of an act of government, where the 
ancients looked merely to its desirability or expediency." 84 
And he adds that " such an idea of legitimacy could only arise 
after men had come to think of a universal law which had more 
coercive power than mere universal reason, but, like reason, 
was coterminous with mankind ; and, what is more, coeval 
with man himself. And granted that there was such a pre- 
existent law, it became inevitable that governments and their 
acts should be judged by their conformity to it rather than to 
reason alone." 85 The idea of the Rechtsstaat and of constitu- 
tional government was a logical derivative from the idea of 
natural law. The function of the Rechtsstaat is to administer 
justice to all, not merely to protect individual status but to establish every 
individual in his right status. It is government by law, but 
government by right law. 

This concept of the Rechtsstaat, particularly as formulated by 


Fichte, is the expression of integral liberalism, which espouses 
freedom for each individual under the impersonal authority of a 
law that transcends individual will or desire. It conceives of this 
law as having substantive content which serves as a limitation 
upon arbitrary will and as being discoverable through reason and 
conscience. To trace the development in Germany of liberalism 
one must trace the development of the Rechtsstaatsidee which is 
its embodiment. 

Fichte continually stresses the fact that individual freedom can 
be obtained only by the common acceptance of a universal law. 
" All positive laws/ 5 he wrote, " are, in a greater or less degree, 
deduced from the rule of Rights (Rechte). There is and can be 
no arbitrariness in them. They must be such as every rational 
being would necessarily make them. In these positive laws the 
rule of Rights is applied to the specific objects which the rule 
comprises. Positive law floats in the middle between Rechts- 
gesetze and Rechtsurtheile. In positive law the rule of Rights is 
applied to particular objects ; in the decisions of law, the positive 
law is applied to particular persons." 86 That Fichte thought the 
administration of law was more or less mechanical is further 
indicated by his statement : " The civil judge has to decide only 
what has occurred, and then to state the law which applies to 
the occurrence. If the law is clear and complete, the decision 
or sentence should already be contained in it." 87 

Submission to law, he says, is not subjection " to the arbitrary 
will of a man, but to an unchangeable, determined will, in fact, 
to the will of reason in general, or to my own will, as that will must 
be, if determined by the rule of Rights ; and unless my will is so 
determined, I have no rights at all." 88 But the difficulty, he 
says, is not yet completely solved. There must be some assurance 
that law will be supreme and that no power " except that of law 
can ever be turned against me." 89 He is in search, he says, 
" of a will which shall have power only where the law wills, and 
which shall have no power whatever where the law does not 
will ; a will, in short, which is an infallible power, but only when in 
conformity with the will of the law" 90 

The will which he finally posits as capable of performing this 
function is the united will of free persons associated in a common- 
wealth existing to guarantee the rights and freedom of each 
individual within it. 91 As he explains it : 

That a number of free beings unite themselves, signifies : they desire 
to live together. But this they cannot do, unless each restricts his 


freedom by the freedom of all others. If a million men live together, 
it is very possible for each to desire as much freedom as possible. But 
if you unite the will of all of them in one conception, as one will, 
then that one will divides the amount of possible freedom in equal 
parts among them all ; desires all to be free, and hence desires the 
freedom of each to be restricted by the freedom of all others. The 
only possible point of union for their will is, therefore, the Law, and, 
in our case where a fixed number of men of various inclinations and 
occupations live together the Law in its application to them, or 
their Positive Law. As sure as they are united they must will the 
law. If but one of them is wrongly treated, this one certainly pro- 
tests, and they are no longer united. . . . Concerning justice and 
law, therefore, all are agreed ; and all who are agreed necessarily 
desire law and justice. There cannot be a community whereof one 
member has another will than the other member. But as soon as two 
individuals are no longer united in their will, at least one of the two 
is at variance with all the others ; his will is an individual, and hence 
an unjust will. If the will of the other, with whom he is in conflict, 
agrees with the will of all the others, then this other is necessarily 
right. 92 

The substance of his concept is contained in the statement that 
" the existence of the commonwealth itself [should] be made to 
depend upon the effectiveness of the law." 93 In other words, 
individuals unite for the purpose of securing justice to each and 
the commonwealth can exist only so long as injustice is not 
tolerated. " The relation between each member and the 
commonwealth," he wrote, " must therefore be thus, that, from 
each injustice against an individual however petty, there also 
results, necessarily, injustice to all." 94 

Fichte apparently believed that this ideal Rechtsstaat could be 
established by the adoption of a written constitution. He did not 
believe that the form of government was necessarily prescribed 
although he did believe that democratic government was the least 
desirable form, because under it the people would be both judge 
and party. 95 He would have the people elect a tribunal, which 
he called an Ephorate, to watch over the government and decide 
when its acts were unconstitutional. He thought that this system 
was preferable to a separation of powers. Ordinary judicial 
power he would leave under the supervision of the executive ; 
the Ephorate would function as a kind of super-tribunal sitting 
in judgment upon acts of the government. If the government 
acted unconstitutionally, the Ephorate would first issue a warning, 
and then, if the government did not heed the warning, it would 
call the people together in convention to overthrow the 
government. 96 


Too often has Fichte been unjustly described as an ideological 
forerunner of the National Socialists. Although his patriotism 
often led him to make assertions which, if extracted from the 
context of his political philosophy, sound similar to the boastings 
of the Nazis, Fichte's temperament and philosophy, his motives 
and his character, are diametrically opposed to everything the 
Nazis stand for. In a recent article which ably points this out, 
F. W. Kaufmann observes that " Fichte is a moral idealist whose 
principal concerns are the political and inner freedom of the 
individual, the right and duty of the individual to contribute his 
best to the welfare and the cultural progress of his nation, the 
independence of all nationalities, social security, and an accept- 
able standard of living for every human being. These demands 
are based on a genuine respect for the dignity of man and the 
desire to contribute to the rule of humanitarian values in all 
human relations." 97 

Of his Reden an die deutsche Nation, in which many writers have 
found evidence of Fichte's kinship with the Nazis, Kaufmann 
says : 

One may explain such extreme statements as products of a war 
psychology created by the presence of an army of occupation. What 
counts more, however, is the fact that Fichte does not give a picture 
of what the German people really are, but what they should become 
in the future. It is his desire that they use the present crisis and their 
misery to reform their own individual and practical life, to free them- 
selves from external bondage, and to become the elect people in their 
striving for the realization of a spiritual community of man . . . the 
most fervently nationalistic of Fichte's works is not a prophecy of 
German racial preeminence, but a challenge to take the lead in 
responsible world-citizenship. Its spirit is diametrically opposed to 
that of National Socialism. . . . Instead of finding in Fichte another 
proof for an incorrigible warlike German mentality, one should rather 
emphasize the undeniable fact that National Socialism betrays the 
best German tradition and debases the German character. 98 

Nationalism, as it was originally conceived by men like Fichte, 
Herder, and Mazzini, rather than being opposed to liberalism 
was its direct counterpart. The so-called " nationalism " of 
Hitler and of Mussolini is but a rank perversion of everything 
these men cherished and advocated. 

A champion not only of national autonomy but of individual 
liberty and equality, Mazzini told his fellow-countrymen : 

Your first duties first as regards importance are . . . towards 
humanity. You are men before you are either citizens or fathers. If 


you do not embrace the whole human family in your affection, if you 
do not bear witness to your belief in the unity of that family conse- 
quent upon the unity of God ; and in that fraternity among the 
peoples which is destined to reduce that unity to action ; if, whereso- 
ever a fellow creature suffers, or the dignity of human nature is 
violated by falsehood or tyranny, you are not ready, if able, to aid 
the unhappy, and do not feel called upon to combat, if able, for the 
redemption of the betrayed or oppressed you violate your law of 
life, you comprehend not that religion which will be the guide and 
blessing of the future." 

Mazzini was both a liberal and a nationalist. A nation, he said, 

... is not a mere zone of territory. The true country is the idea to 
which it gives birth ; it is the thought of love, the sense of communion 
which unites in one all the sons of that territory. 

So long as a single one amongst your brothers has no vote to 
represent him in the development of the national life, so long as there 
is one left to vegetate in ignorance where others are educated, so 
long as a single man, able and willing to work, languishes in 
poverty through want of work to do, you have no country in the 
sense in which country ought to exist the country of all and for 
all. . . . 

Never deny your sister nations. Be it yours to evolve the life of 
your country in loveliness and strength ; free from all servile fears or 
sceptical doubts ; maintaining as its basis the people ; as its guide the 
consequences of the principles of its religious faith, logically and ener- 
getically applied ; its strength, the united strength of all ; its aim the 
fulfilment of the mission given to it by God. 

And so long as you are ready to die for humanity, the life of your 
country will be immortal. 100 


Those German writers who followed Fichte suggested many 
different ways for bringing about a Rechtsstaat, but they were 
fundamentally in agreement with his idea of a commonwealth 
united under law for the purpose of securing justice to each 
individual. Such a state was necessarily a constitutional state, 
in the sense that it implied limitations on the powers of govern- 
ment, but it was something else $s well. Men who came after 
Fichte were not certain that such a state could be established 
merely by the adoption of a written constitution. They were 
particularly plagued by the problem of how to make sure that 
the law would be binding on the executive, and they seemed 
more concerned about providing checks on the administration 
than providing checks on the legislature. This attitude was 
probably due to the conditions which prevailed in Germany, for 


the real threat to individual freedom came from the executive 
which was dominant and not from the legislature. 

Otto Bahr, for example, wrote in 1864 that " to make the 
Rechtsstaat come true, it is not sufficient that public law be ex- 
pressed in statutes ; there must also be a judiciary qualified to 
establish what is right in the concrete case and thus give an 
indisputable foundation for the rehabilitation of law where it has 
been violated." 101 He suggested the establishment of a system 
of courts to administer public law, with the courts part of the 
ordinary judicial organization and judges both elected and 
appointed. His influence was not particularly great, however, 
and it remained for Rudolph von Gneist to give impetus to the 
movement for practical reform. 

The chief conflict between private and public rights, Gneist 
insisted, did not come between the legislature and the individual 
but between the administration and the individual. Thus, he 
thought, the degree of freedom which the individual has is 
proportionate to the degree of control exercised over the adminis- 
tration. It was legal liberty, rather than political liberty, which 
particularly engaged his attention. He was particularly con- 
cerned with protecting individual rights, with providing 
machinery for the protection of these rights against executive 
and administrative power, from which source he saw them most 
likely to be threatened. 

Control over administration, he suggested, should first of all 
be legal, that is, administrators should know by statute what they 
can and cannot do. Secondly, administrators should administer 
law as though they were acting in a judicial capacity, not as 
partisans or as agents of the ministry. Law interpretation and 
administration should be independent of the political administra- 
tion and follow prescribed forms of procedure. 

For Gneist the Rechtsstaat could only be achieved when " the 
whole inner administration of the State " was made independent 
" from the change of ministers, from the shifting of ministerial 
systems, from the irresistible tendency of the dominant party tc 
make the possession of offices useful for vote-getting and party 
ends." 102 Having studied the English system, he was impressed 
with the political independence of the civil service, as well as witt 
the system of local self-government, and urged the adoption of 
similar system in Germany. 

He admired as well the system of administrative law which h< 
thought he saw developing in England. The adoption of < 


prescribed procedure, he thought, tended to make administration 
more responsible and provided individuals with recourse against 
the misuse of power. He advocated the establishment in Ger- 
many of administrative courts as part of the administrative 
organization although separate in the higher spheres from the 
ministry. 103 Three years after his book on the Rechtsstaat 
appeared, a Prussian Supreme Administrative Court with power 
to review executive measures was established in 1875. By 
aiding the development of administrative law it performed a 
function which constitutional law has performed in the United 

For Gneist, as for Bahr, Lorenz von Stein, Robert von Mohl, 
and other German liberals, the state existed as but one associa- 
tion within society. 104 It was supreme over other associations 
only in the sense that it was conceived as existing to preserve 
unity among all the elements. It existed to provide individuals 
with the maximum possible freedom for self-development and 
self-expression. Ideally conceived, it was neutral in interest, 
serving only to administer justice. It existed not for the indivi- 
duals within it conceived as a whole, but for each individual. It 
was the law of the state, administered alike to every individual, 
its content subject to substantive limitations, which guaranteed 
freedom for individuals with an ordered commonwealth based 
upon justice. 

To summarize briefly : Liberalism in its integral form focused 
its attention on the individual as a moral entity, positing a belief 
in the absolute value of human personality. As a consequence, 
it demanded the greatest possible freedom for every individual 
from all authority that was personal, arbitrary, or capricious. 
It espoused freedom for the individual under the impersonal 
authority of law. It conceived of the law as being eternal, 
universal, and rational, and as containing substantive limitations 
upon subjective interest and will. To an anarchic conception 
of society as composed of autonomous individual units, liberalism 
opposed the conception of an order transcending individuals, and 
placed the responsibility for realizing this order, potentially 
embodied in eternal truths, upon individual reason and con- 
science. The link between the subjective will of the individual 
and the objective order transcending individuals was reason and 

These original notions of liberalism found expression in Ger- 
many, as they did in every other nation of the Western world 



With the formulation of the concept of the Rechtsstaat, and with 
the attempts made by men like Gneist to translate the idea into 
political reality, liberalism found practical as well as intellectual 
expression in Germany. In examining the development of the 
Rechtsstaatsidee in Germany, we necessarily examine the develop- 
ment of liberalism as a political doctrine. 





Das sogemante "positive" Recht ist . . . schlechthin 
Gewalt 9 physische Macht, der sick die Unterworfenen 
tatsachlich beugen . . . Derm aus den blossen Tatsachen 
des Befehlens 9 Gehorchens und %wingens harm ebenso- 
wenig wie aus irgendwelchen Tatsachen und Kausal- 
zusammenhangen ein Sollen gefolgert werden. 



In the course of the nineteenth century, interest in the eternal 
gradually gave way to interest in the temporal, interest in the 
universal to interest in the particular and the relative. Attention 
shifted from man to his environment, from the " ideal " to the 
" real," from man in the abstract to man " as he actually is." 
Men saw chance and emotion operative in the world, as well as 
regularity and reason ; they saw change and development, and 
within this development they " discovered " immanent principles 
of growth. This change in perspective was the result of two 
very different things. It was, in part, an outgrowth of a Roman- 
ticism that focused attention on the particularity of occasions, 
and, in part, an outgrowth of an endeavour to apply scientific 
methodology to a study of social phenomena. Both, for some- 
what different reasons, stimulated the study of history and the 
search for particular and " positive " facts. 

Romanticism discarded the belief in " social atoms on a foot- 
ing of equality with one another " and " in universal laws of 
nature by which these atoms were combined," but posited the 
conception of " personalities constantly moving to different 
specific forms." * This led to a different notion of humanity. 
As Troeltsch observes : " Instead of ideas of the equal dignity 
of Reason everywhere, and of the fulfilment of universal law, we 
have the conception of a purely personal and unique realization 
of the capacities of Mind in every direction, primarily in indi- 
vidual persons, but secondarily also in communities themselves." s 
Intuition and emotion assumed greater importance than reason, 

1 For notes to Chapter III, see pp. 127-9. 


In fact, the "Romantic theory of knowledge was based upon 

The state was conceived to have a spiritual essence, the pro- 
duct not of " contract and rationally purposive construction " 
but rather of" super-personal spiritual forces." 3 For eighteenth- 
century natural law, Romanticism substituted the Volksgeist. 
This was relative to time and place, but it was transcendent. 
The tendency was to deify the state, and, as Troeltsch says, to 
deify " the actual particular State," 4 

This way of thinking stimulated men to study history in order 
to discover the essential elements of the particular Volksgeist. It 
led to the founding of a historical school of jurisprudence (about 
1809) which accepted as its motto Savigny's phrase that : Das 
Gesetz ist das Organ des Volksrechts. Henceforth nineteenth- 
century German jurisprudence, however it may have repudiated 
the historical school, accepted as axiomatic that law is relative 
in content to time and place. Moreover, as the study of history 
gradually endeavoured to separate itself from philosophy, historio- 
graphy was turned " into the paths of materialism or complete 
relativity." 5 The change in thought led in time to positivism ; 
although at first, because of its intimate connection with philos- 
ophy, it was immersed in metaphysics. 

Another impetus to the study of history came from science. 
Since the principle of causation in which scientific methodology 
was rooted had aided the natural scientist in deriving principles 
from the observation of successive physical events, the application 
of a similar idea of causation to the study of history seemed likely 
to yield comparable results. As scientific thought became domin- 
ant, as men sought to apply scientific analysis to human phenom- 
ena, men began to ask " how " more frequently than they asked 
" why." The experimental method based on empiricism and 
the inductive logic inherited from Aristotle and Bacon were the 
tools with which the scientist sought to examine the operation of 
the universe. Premised upon the belief that the universe is 
a rational whole, in the sense that it can be rationally under- 
stood, and that " every detailed occurrence can be correlated 
with its antecedents in a perfectly definite manner, exemplify- 
ing general principles," 6 nineteenth-century science led men 
to believe that by empirical methods they could discover 
" positive facts " and " universal laws " about all phenomena, 
human as well as physical. Endeavouring to repudiate the 
search for " final causes," the scientist tried to content him- 


self with the " pure " description of empirically observable 
" facts." 

With increasing emphasis upon empiricism, less and less 
attention was given to metaphysical problems. In fact, the 
scientist thought that he had eliminated metaphysical problems, 
and, along with them, all questions of value judgment. Accord- 
ingly, as the physical scientist eliminated good and bad, beautiful 
and ugly, from his vocabulary, so did the student of human 
phenomena who accepted the scientific methodology. As a 
consequence, or perhaps as a corollary, philosophers themselves 
concentrated less attention on metaphysics and more upon 
epistemology. The question of how men know things became 
prior to the question of what they know. 

The effect of this trend towards positivism, which culminated 
in the latter half of the nineteenth century, was to destroy all 
belief in transcendental truths and values. Judgments of right 
and wrong, good and bad, justice and injustice, were thought to 
be based upon utility or expediency. Value judgments were 
thought to be expressions of subjective preference rather than of 
objective truth. As materialism replaced pantheism and as 
empiricism stimulated subjectivism, conscience was denied a 
" scientifically " valid role in the determination of truth or value. 
Reasonable (logical) inductions from empirical " facts " sup- 
planted right reason. Quantitative thinking became dominant. 

Another consequence of the rejection of metaphysics and 
transcendent truth was the abandonment of the idea of natural 
rights peculiar to individuals as human beings. The scientist 
could not see a " soul " ; he could not demonstrate empirically 
the absolute moral worth of individuals. Individual rights, 
therefore, could no longer be conceived transcendentally. Rights 
tended, accordingly, to be equated with interests. They were 
no longer regarded as existing prior to the state but rather as 
a consequence of the existence of the state. Rights were made 
dependent upon membership in a political community. In 
other words, individuals were no longer conceived as having 
rights as human beings but as citizens ; for natural rights the 
nineteenth century substituted legal rights. 

As a further result of the rejection of transcendent truth a 
change took place in the meaning of law. Law was conceived 
more and more as a product of will, of social forces, and less and 
less as an ideal standard. With the content of law, that is, tran- 
scendental truth, eliminated as the criterion of law, nothing 


remained but form. Scientific " c natural law * in the sense of 
c the observed order of phenomena ' . . . tended ... to 
crowd the earlier rationalistic conception to the wall, thus aiding 
the triumph of the idea of human and governmental law as an 
expression solely of will backed by force." 7 Substantive limit- 
ation to governmental authority, in the form of concrete individual 
rights, is abandoned. For, with the notion that the will of the 
law-making body needs only sufficient force behind it to make its 
will law, the only limitation is that the content of its will take the 
form of law. But it is a form ready for any content, indeed, even 
for content that might destroy individual rights and freedom. 

In democratic countries, where this notion of positive law as 
the sole law was adopted along with the notion of the sovereignty 
of the legislative assembly, " all the varied rights of man were 
threatened with submergence in a single right, that of belonging 
to a popular majority, or more accurately, of being represented 
by a legislative majority." 8 Quantitative thinking triumphed. 
But there was no assurance that the will of the majority, popular 
or legislative, would always be right or just, unless the deter- 
mination of tightness and justness was thought to be simply 
a matter of counting heads. What happened was that Tightness 
and justness were abandoned as criteria of law ; procedure and 
the manner of enactment, the source rather than the content of 
law, were substituted for justice as criteria of law. 

To the will of the majority there was conceived to be no sub- 
stantive limitation and whatever the majority enacted according 
to prescribed procedure was regarded as law. The legislative 
assembly might decide, indeed, as the German Reichstag did in 
I 933j to legislate itself out of existence in order that individuals 
might have the right of being " represented " by a " leader " 
who " knew " their desires better than did the Reichstag itself. 
Only a change in the conception of representation was necessary 
to make this a valid conclusion from the premises, and this change 
was not difficult to bring about for if representation by a legis- 
lative majority is regarded simply as a technical device with no 
inherent claim to Tightness or justness, representation by one man 
(claiming for himself seer-like powers) is logically just as valid 
a technical device. He can claim, with equal logical justifi- 
cation, to represent the will of the people. Then, whatever he 
enacts in the form of law backed by sufficient force must be 
regarded as law. His will, rather than the will of a legislative 
majority, fills in the content of law, but if the lightness and justice 


of the content of law have been eliminated as valid criteria of 
law, the possibility of evaluating his actions on these grounds 
has been eliminated at the same time. 

The notion that law " is nothing but a standard of normalcy 
to regulate the universal service to the common interest " 9 does 
not preclude the possibility that one man may claim with equal 
logical validity to represent this " common interest " better than 
a legislative majority. Both agencies of representation may be 
regarded simply as technical devices, neither of which can lay 
claim to the inherent Tightness or justness of the content of its 
will. As Ashton says, democrats are prone to think that the rule 
of the majority will provide " absolute justice though in fact, of 
course, it is nothing but the subjective justice of a mass of demo- 
cratic individuals." 10 Further, he observes : 

We cherish it as an ideal although we know perfectly well that even 
in theory it can never be anything but the expression of what a par- 
ticular group of human beings feels to be " right " at a particular 
time. Now this is exactly what the Fascists maintain also. But they 
refuse to pursue even as an ideal the illusion of a justice independent 
from the group administering it. ... Its justice is avowedly a 
subjective justice based upon communal interest. 11 

In essence, a principle of obligation, a Sollen, cannot be derived 
from a conception of law as simply the expression of will backed 
by force. 

It is clear, at any rate, that the original concepts of liberalism 
became formalized to the extent that men accepted the per- 
spective and premises of positivism. When men imbued with 
empiricism no longer believed in transcendental truth and value 
discoverable by reason, all objective limitation to will was 
removed. For, as Berdyaev rightly points out, " Freedom means 
not only freedom of choice, but choice itself." 12 As he says in 
another place : " Dynamic liberty is not formal freedom of 
choice ; dynamic liberty presupposes a previous choosing of the 
truth." 13 It is not enough that men reason but that they reason 
from premises which they accept as true. Parliamentary insti- 
tutions can function effectively only so long as minority as well as 
majority accept the same premises. These premises, moreover, 
cannot be reasoned about but must be accepted on faith. It is 
not enough, then, that men act reasonably ; they must affirm 
certain truths and values in common. 14 

When men deny conscience a valid role in the scheme of 
things, in an attempt perhaps to be " scientific," freedom as con- 


ceived integrally degenerates into license. The link between 
subjective will and objective truth is destroyed. Law comes to 
be synonymous with command, its obligation resting no longer 
upon the justice of its content but upon the force that sanctions 
it. Law becomes at best a form ready to be filled in with any 
content, however just or unjust, good or bad. 

This change in viewpoint, however, came about gradually. 
The philosophical school of thought was still dominant in the 
early nineteenth century, and the early historical school, so long 
as it maintained its connection with the philosophical school, 
was still integrally liberal. In place of the eighteenth-century 
concept of law as universal, eternal, absolute, and immutable, 
the historical school of the nineteenth century substituted the 
concept of law as relative to time and place. The legal order of 
the eighteenth century was grounded in " the nature of things " 
or in " human nature," but the legal order of the early nineteenth 
century was grounded in " history." 


The historical jurist agreed with the eighteenth-century jurist 
that law is found and not made, but he looked for it in history 
and not in human nature. He was more of an empiricist than 
his predecessors, but he did not rely upon empiricism alone. He 
found ideas of freedom and of justice evolving in history, and in 
this his thought was intimately related to that of the philosophical 
school of jurisprudence. Like the eighteenth-century jurist he 
believed in transcendental truths which limited arbitrary will. 
As Pound describes the historical school : 

It did not think of a law which had always been the same but of a law 
which had grown. It sought stability through establishment of 
principles of growth, finding the lines along which growth had pro- 
ceeded and would continue to proceed, and it sought to unify stability 
and change by a combination of historical authority and philosophical 
history. Utilizing the idea of authority, it sought to put a historical 
foundation under the seventeenth- and eighteenth-century theory of 
law as only declaratory of something having a higher authority than 
the pronouncement of legislator or judge as such. Law was not 
declaratory of morals or of the nature of man as a moral entity or 
reasoning creature. It was declaratory of principles of progress 
discovered by human experience of administering justice and of 
human experience of intercourse in civilized society ; and these 
principles were not principles of natural law revealed by reason, they 
were realizings of an idea, unfolding in human experience and in the 
development of institutions an idea to be demonstrated metaphysic- 


ally and verified by history. All of this body of doctrine did not 
develop at once. But such was the creed of the school which was 
dominant in the science of law throughout the century, and in one 
form or another this creed may be identified in all the varieties of 
juristic thinking during the century, even in schools which professed 
a different method. 16 

The historical school, particularly as it developed later on, 
was permeated with the idea of evolution. It was mechanistic 
in its attitude and tended to regard the universe as a great 
machine that ran by itself. Thus the historical school and its 
branches were opposed to reform and to legislation generally. 
As Pound says : " They conceived of a slow and ordered suc- 
cession of events and of institutions whereby things perfected 
themselves by evolving to the limit of their idea." 18 Historical 
jurisprudence was deterministic and fatalistic. For although it 
apparently took account of growth and progress it falsely assumed 
that " it had discovered finally the immutable lines of growth or 
had calculated once for all the fixed orbit of progress outside of 
which no movement could possibly take place." 17 

It provided, however, the security and certainty that the 
bourgeoisie of the nineteenth century wanted most. The idea of 
equality, in the nineteenth century, meant " equality of operation 
of legal rules and equality of opportunity to exercise one's will 
and substance." 18 Security meant that " everyone is secured 
in his interests against aggression by others and others are to be 
permitted to acquire from him or to exact from him only through 
his will that they do so or through his breach of rules devised to 
secure others in like interests." 19 Thus, a formal rather than 
a substantive equality is espoused, and the end of law is no longer 
to provide justice but to provide security and the maximum 
possible individual self-assertion. 

The law-of-nature school believed that the jurist by reason 
alone, without knowledge of the historical past, could frame 
a perfect and complete code. The jurist's task was simply to 
find the principles and the task of the legislator was to codify 
them. The judge was conceived to have no creative function ; 
his task was simply to apply the code literally to the particular 

The nineteenth century reacted against this optimistic ration- 
alism and for a time there was some scepticism among jurists as to 
the possibility of legislating at all. This, at any rate, was the 
reaction of Savigny, for whom all law was the product of the folk 


mind or folk spirit. As he stated it : "all law is originally 
formed in the manner in which, in ordinary but not quite 
correct language, customary law is said to have been formed, 
i.e., that it is first developed by custom and popular faith, 
next by jurisprudence everywhere, therefore, by internal 
silently operating powers, not by the arbitrary will of the law- 
giver." *> 

He regarded law essentially as Volksrecht, as a product of the 
Volksgeist. This opinion was in keeping with the Romantic 
movement. Just as Arnim and Brentano found the embodiment 
of the folk spirit in popular songs, as the brothers Grimm found it 
in fairy fales and in language, so Savigny found the folk spirit 
embodied in law. Some of his followers were able to turn this 
idea of a folk spirit into a rampant nationalism, but Savigny 
himself did not do so. A Romanist, rather than a Germanist, 
his conception of law as the product of the folk spirit was not in 
itself nationalistic. 

However, the historical school, as represented by Savigny, 
relied upon the collective conscience of the folk community, 
expressed in customs and prevailing mores, as the sanction behind 
law. The natural-law school had relied upon the intrinsic justice 
of the rule and upon individual conscience as the sanction. 
Here, however, there is some difference. The idea that the 
sanction of law is the social pressure behind it led in time to the 
analytical conception that the sanction of law is the force supplied 
by the state. The historical school did not, of course, go so far, 
but it contained the germ of this idea. So long as the historical 
school maintained its intimate connection with metaphysics, this 
idea did not emerge, but when the historical school severed itself 
from the philosophical school the way was open for just such 
a conception of law. 

Savigny regarded the character and content of law as fixed 
permanently in particular peoples. " In the earliest times to 
which authentic history extends," he wrote, " the law will be 
found to have already attained a fixed character, peculiar to the 
people, like their language, manners and constitution. . . . 
That which binds them into one whole is the common conviction 
of the people, the kindred consciousness of an inward necessity, 
excluding all notion of an accidental and arbitrary origin." 21 
Though Savigny saw growth and development in the past he 
assumed the essential datum as given from the beginning. He 
believed, as Korkunov points out, that : 


. . . each people at its appearance on the arena of history had already 
its popular genius definitely established and containing in itself all the 
historic life of the people. In other words, this school comprehended 
the historic development as an organic and not a progressive one, not 
as an evolution. This was not meant to affirm that the development 
of law is the creation of some new factor, but only that it is the pro- 
duction of what from the beginning was already in embryo in the 
popular genius. 22 

This interpretation of legal history might be called, as it is by 
Pound, an ethical interpretation. It looks back into history and 
finds evidence to support the claim that history is nothing but the 
gradual unfolding or development of the idea of right or justice. 
The metaphysical basis for this interpretation was supplied by 
Kant. According to Kant " every action is right which in itself, 
or in the maxim on which it proceeds, is such that it can co-exist 
along with the freedom of will of each and all in action, according 
to a universal law." 23 One should act, therefore, so that the 
maxim of the act might be made a universal principle. One 
should treat each individual as an end and never as a means. 
It is reason that points out the duty of following the categorical 
imperative and the action to be followed. Kant discards 
eighteenth-century natural law and substitutes a different concept 
of justice, for, as Pound points out, " while to the eighteenth 
century justice meant the securing of absolute, eternal, universal 
rights of individuals, Kant held that it meant securing freedom 
of will to everyone so far as consistent with all other wills." 24 

By adopting in substance, although with some modification, 
Rousseau's concept of a general will, Kant succeeded in using this 
as the means by which individual wills within a state were recon- 
ciled. The state was founded, he thought, not by human will but 
by the reason immanent in human will. Freedom, thus, is not 
destroyed by membership in the state but actually so secured. 
The state is not based on utility but on the idea of freedom. 

The early historical school of jurisprudence merged Kant's 
idea of a transcendent universal principle with an idealistic inter- 
pretation of history. Both the philosophical and the historical 

. . . postulated an ideal law. One sought to discover this ideal law 
through history, the other sourfit to find it through logical develop- 
ment of an abstract idea. ,\. Philosopher and historian were 
agreed that law was found, not made. One found it by deduction 
from a metaphysical principle, the other found it by historical study. 
Each, one need not say, found an ideal development of the principles 


of existing law ; the historian because he so interpreted history, the 
philosopher because he was seldom a lawyer and got his facts and 
illustrations from the historian. 25 

Each school supplemented the other. From metaphysical 
deductions one found the form of law, from history and experience 
the content of law. So long as law was conceived to have both 
form and content, so long as the philosophical and historical 
schools supplemented one another, the conception of law was 
integrally liberal. But since Kant believed " that instead of 
eternal precepts of actual law there were but eternal principles of 
making law by which the actual precepts might be criticized " 26 
Kant's theory, once it was divorced from the historical school, 
could easily lead to a sterile formalism. 

There is a tendency here in Kant to make individual freedom 
possible only by membership in the state. It is an idea carried 
further by Hegel, who declares that there is no freedom outside 
the state. In a similar vein, Puchta declared that " the Rights 
of Peoples are different ; and the peculiar characteristics of a 
nation are exhibited in its System of Right, just as its Language 
and Customs." 27 Implicit in this statement of Puchta's is the 
idea that rights are not peculiar to individuals as human beings 
but peculiar to them as members of a particular folk community. 
Although Puchta did not go so far, it is but a short step to saying 
that rights are dependent upon the state for recognition and that 
they represent a concession by the state, a concession to be granted 
or refused. The direction in which these ideas point is brought 
out even more clearly when Puchta discusses the source of right. 
He wrote : 

Through this common consciousness of Right, as by a common 
Language and a common Religion, the members of a people are bound 
together by a definite union. This union rests upon a certain relation- 
ship of body and mind ; it extends beyond the intimacy of the inner 
family bond, and arises out of an actual division of the race of man- 
kind. The consciousness which permeates the members of a people 
in common, is born with them and makes them spiritually members 
of one whole. It constitutes, in a word, the national mind or spirit of 
the people ; and it is the source of human or natural Right, and of the 
convictions of Right which stir and operate in the minds of 
individuals. 28 

In this kind of thinking, represented by the early historical 
school, the notion of the group or community tends to emerge as 
more important than the individual. The group, moreover, is 
not conceived as a plurality of individuals but as an entity and 


organism. The concept of social process supplied by the his- 
torical school " thrust into the foreground of the philosophic 
consciousness the notion of society as a developing organism 
achieving its continuity through some sort of selective process 
related to the performance of function." 29 


This idea of society as an organic whole finds classic expres- 
sion in Hegel. It was largely due to him that state and society 
were conceptually severed. Where former political thinkers 
had set the individual and the state over against one another, 
Hegel introduced the concept of society between the two, and it 
thus became possible to conceive of a science of the state as apart 
from a science of society. This concept of society, linked with 
the idea of evolution, made possible the later studies of Comte, 
Spencer and Marx. 

Hegel himself had a concept of evolution, and his " theory of 
organic unity was combined with a theory of historical dialectic 
which emphasized the continuity of history." ** He tried to 
merge an a priori rationalism with historic realism, but the result 
was not a genuine evolutionary theory; history was only the 
gradual unfolding of an idea, an idea that was assumed to start 
with. It did lay the basis, however, for further historical studies. 

At any rate the introduction of the concept of society made it 
possible for Hegel to separate state and society and to personify 
the state, to give it a meaning that it had not had earlier. For 
the eighteenth century the state was something consciously 
created by individuals for individual purposes. For Hegel the 
state was not a contractual instrument, nor a creation of indi- 
vidual will, but an organ of the entire community fulfilling ends 
common to the community. It was the realization of an idea, 
an historic and logical necessity. 

The state for Hegel is something real ; it does not depend 
upon the will of individuals for its existence but is the product of 
organic growth. It is a person in the sense that it " has its basis 
and cause in itself." 31 It is a subject of rights and hence a 
juristic person. The concrete bearer of the state's personality is 
the monarch although the monarch is not identical with the 
state. For, " when the monarch says * I will, 5 to legislative or 
executive proposals which are presented to him for approval, 
the State says ' I will ' through him, but this, far from signifying 
that his will is the State's will, indicates rather that, although 


there can be no State will without him, he merely gives the 
subjective conative form to an already determined content." 32 
Apart from his entire philosophical system, this concept would 
lead to uncontrolled absolutism, but for Hegel the content of 
action was predetermined in history and so was not arbitrary. 

Since he believed that the real is rational and the rational is 
real and that development necessarily follows a dialectical pro- 
cess, he believed that the content of action was to be found in 
process and not in will. As an absolute idealist, he thought that 
this process was concerned with ideas, but Marx, using the same 
method but substituting economic forces for ideas, reached the 
same conclusion that the content of action is predetermined in 
the process. What Marx found predetermined was something 
quite different from what Hegel found, but the method was the 

Throughout the greater part of the nineteenth century this 
notion of society evolving towards a certain predetermined end 
was dominant. The end was thought to be dictated by reason 
and verified by history. The process was thought to be inevit- 
able, irreversible, and independent of individual will or desire. 
The limitation imposed upon arbitrary will was conceived to be 
" the spirit of history," the Volksgeist, or custom. Men believed 
that the less legislation there was the better. It was better to let 
the historical process work itself out unaided. 

The dominant tone of the period was optimistic. As White- 
head observes : " The political, liberal faith of the nineteenth 
century was a compromise between the individualistic, com- 
petitive doctrine of strife and the optimistic doctrine of harmony. 
It was believed that the laws of the Universe were such that the 
strife of individuals issued in the progressive realization of a 
harmonious society. In this way, it was possible to cherish the 
emotional belief in the Brotherhood of Man, while engaging in 
relentless competition with all individual men." 33 The practical 
consequences of the doctrine of competition, the effects of the 
industrial revolution, particularly the creation of an industrial 
proletariat, did not bear out the optimism of the early nineteenth 
century. Theoretically, too, the. Stoic-Christian idea of the 
Brotherhood of Man was undermined by the doctrine of evolution. 

Darwin's doctrine of natural selection, when applied to 
human relations, emphasized strife rather than cooperation and 
" instead of dwelling on the brotherhood of man " emphasized 
" the extermination of the unfit." 34 The destruction of men 


is conceived as the " engine of progress." 36 With the gradual 
abandonment of Lamarck's doctrine that acquired characteristics 
can be transmitted from generation to generation and that in this 
way society may become progressively better, " progress " was 
conceived more and more as mechanical and was held to depend 
less and less upon individual effort. The implications of 
Malthus's doctrine, namely, that the poverty of the masses 
must be regarded as inevitable and that nothing can be done 
about it, made reform appear not only illusory but impossible. 

Thus, when the philosophical jurists, aided by historical 
jurisprudence, declared that law is found and not made, and 
opposed legislation, they were reflecting a mentality that was 
buttressed by " science. 55 By first accepting certain a priori 
premises and then examining history, they came to the con- 
clusion that the present law was the product of the past, the 
unfolding of an idea of right or freedom. There was nothing 
anyone could do but accept the existing law as it was. They 
were not so much interested in the content of law as in the 
source of law. By regarding the content of law as fixed from the 
beginning, by regarding the growth of law as the filling in of 
details, as the logical or historical development of a given idea, 
they supplemented and gave affirmation to the ideas of Darwin, 
Malthus, and Spencer. Reform was impossible. 

But implicit in the thought of the philosophical jurists were 
ideas which other men might use to refute them. While they 
asserted that law was found and not made, they regarded law as 
the product of the community, as peculiar to time and place. 
If law was the product of the community and if it was peculiar 
to time and place, then it might be regarded as a social instru- 
ment. Moreover, if society could change in character, one 
might assume that the content of law might also change. More- 
over, they regarded the sanction of law as residing in the common 
" convictions 55 or " consciousness 55 of the people, and this might 
be taken to imply that a law which did not satisfy the wants and 
desires of the people was not really law at all. 


In part, then, as a reaction to the philosophical and historical 
school, and in part as a result of the method which they employed, 
a new school of jurists arose to posit law as a means to an end 
rather than as an end in itself ; these were the utilitarians. The 
shift in emphasis from the normative to the explanatory, already 


observable in the historical school, is carried further by the 
utilitarians. With the shift in emphasis from the philosophical 
to the empirical, the concept of society underwent a change. 
It became, as Talcott Parsons points out, 

... the mechanism whereby individual wants, conceived to vary at 
random with no common standard, could be satisfied in the greatest 
possible degree under the existing conditions of human life. Social 
relations were thus reduced to the level of means to individual satis- 
factions. All idea of essentially normative control was abandoned ; 
but on the other hand an element of determinism of a different sort 
was introduced by the analysis of the nature and extent of the limit- 
ations imposed by the conditions, the external environment and man's 
inherited nature under which it took place. Pushed to its final logical 
conclusion this determinism in terms of conditions ended up in the 
positivism of the later nineteenth century, completely eliminating the 
relativism of the earlier utilitarianism. 36 

Although the point of view of the utilitarian found classic 
expression in Bentham, it had a German representative in von 
Jhering, who was less extreme but who believed that " purpose 
is the creator of the entire law ; that there is no legal rule which 
does not owe its origin to a purpose, i.e., to a practical motive." 37 
He recognizes coercion as the criterion of law and declares that 
" only those rules laid down by society deserve the name of law 
which have coercion, or since, as we have seen, the state possesses 
the monopoly of coercion, which have political coercion behind 
them : whereby it is implicitly said that only the rules which are 
provided by the state with this efficacy are rules of law ; or that 
the state is the only source of law." 38 Thus it is the enforcement of 
a rule by the state that distinguishes it as law. " Law," he writes, 
" is the sum of the conditions of social life in the widest sense of 
the term, as secured by the power of the State through the 
means of external compulsion." 39 But it is not the physical 
force of the state alone which insures obedience to its law. There 
are certain psychological reasons why men support the state, 
namely : " insight into the necessity of political order ; the 
sense of right and law ; anxiety for the danger threatening per- 
sons and property in every disturbance of order ; and fear of 
punishment." 40 

Von Jhering thiriks that " there is a social mechanics to compel 
the human will just as there is a physical mechanics to force the 
machine. This social mechanics is identical with the principle 
of leverage, by means of which society sets the will in motion 
for her purposes, or in short, the principles of the levers of social 


motion." 41 There are, he believes, four such levers, reward, 
coercion, the feeling of duty, and love 42 the first two based 
upon egoism, and the two latter on universal ethical purposes. 
Thus he compromises between extreme utilitarianism and ideal- 
ism. His whole theory is oriented around society rather than 
around the individual. " Securing the good of the individual/' 
he says, " is not an end in itself, it is only a means to the end 
of securing the good of society." 43 The end of law, for von 
Jhering, is the satisfaction of human desires, interests, and claims, 
and it is " nature herself that has shown man the way he must 
follow in order to gain another for his purposes : it is that of 
connecting one's own purpose with the other man's interest." 44 Rights, 
in this view, tend to become equated with interests. In the 
thought of von Jhering the foundations were laid upon which 
an analytical school of jurisprudence might be based : he 
regarded law essentially as made and not found, and he dis- 
tinguished law by the coercive force of the state behind it. 
Although the historical jurists had contended that law is dis- 
covered and not made, they had implied that law is the product 
of the community and peculiar in content to particular com- 
munities in a sense, then, an instrument of communal life. 
At any rate this reading of history was as logical as theirs, once 
one began to examine history without assuming beforehand that 
it would demonstrate the gradual unfolding of an idea of right 
or freedom. Historical jurisprudence set in motion, therefore, 
a method of examination which in time was used to " prove " 
false the premises from which the historical jurists started. 


These tendencies latent in the various early nineteenth- 
century schools of jurisprudence culminated in the latter half 
of the century in positivism. With the emergence of the doctrine 
of evolution and the separation of history and philosophy, the 
" scientific " examination of history led men to believe that 
social groups exhibit the same phenomenon of growth as bio- 
logical organisms, and obey similar principles of development. 
At first it was thought that the end of evolution was pre- 
determined, that evolution was purposive and teleological. As 
science undermined metaphysical speculation, however, men 
were forced to examine their environment empirically and 
psychologically, and it was this reaction against rationalism and 
metaphysics that produced von Jhering and the utilitarians. 


In examining the legal system of their time, neglecting the 
historical approach, they found interest behind rights, psycho- 
logical motivation and purpose. But the extreme subjectivism 
and relativism of utilitarianism produced a counter reaction. 

Men wanted to preserve the empirical method given impetus 
by the historical school and the utilitarians, but they wanted, 
also, some objective order. The need felt by the dominant 
bourgeoisie for security, stability, and certainty demanded it. 
Since it was science which had largely undermined the meta- 
physical perspective, it was natural that men should turn to 
science for a new explanation. Since science, with its underlying 
philosophy of materialism, inspired men to regard man essentially 
as a biological organism obeying the physical laws that operated 
upon all matter throughout the universe, it was natural for men 
to believe that their institutions might be conceived as obeying 
similar laws of causation. An objective order independent of 
will could be conceived, accordingly, as embodied in this principle 
of physical causation, of natural compulsion. Such an order, 
moreover, could be regarded as functioning automatically. It 
was calculable (or so men thought), certain, and stable. It 
required neither will nor reason for its realization. Just as the 
physical scientist thought that this order was characterized by 
the competition of atoms issuing finally into harmony, so the 
social scientist thought it was characterized by the competition 
of individuals issuing finally in harmony. To achieve this 
harmony, however, one should let things run their course and 
let the " natural laws " operate without help or hindrance from 
human agencies. This was not the eighteenth-century natural 
order, which required will and the rational recognition of tran- 
scendent truth for its realization, but rather a natural order 
which, based upon sheer physical causation and compulsion, 
required neither will nor reason. 

Positivism, then, is " a philosophical tendency oriented 
around natural science and striving for a unified view of the 
world of phenomena, both physical and human, through the 
application of the methods and the extension of the results 
whereby the natural sciences have attained their unrivalled posi- 
tion in the modern world." 46 It represents the victory of the 
empirical method and " calls c positive ' the facts and things of 
immediate perception as well as the relations and uniformities 
which thought may discover without transcending experience." 46 
It regards as metaphysical " every inquiry which claims to go 


beyond the sphere of the empirical and seeks either hidden 
essences behind phenomenal appearances, or ultimate efficient 
and final causes behind things, as well as any attempt to attribute 
reality to species, ideas, concepts or the mind's logical ' intentions ' 
in general." 47 It may be pointed out that the positivist does, 
in fact, engage in metaphysical speculation and that he assumes 
premises which are essentially beyond empirical proof or demon- 
stration, 48 but it is equally significant that he denies this and acts 
as though it were not so. 

According to the positivist doctrine " a Law of Nature is 
merely an observed persistence of pattern in the observed succes- 
sion of natural things : Law is then merely Description." 49 It 
presupposes that " facts " may be directly observed and described 
without recourse to any scheme of values and equates under- 
standing with description. " Its aim is to confine itself to fact, 
with a discard of all speculation." 50 Positivism sees no purpose 
in the universe but simply chance. As Whitehead observes, the 
world as the positivist sees it" exhibits . . . an involution of paths 
and a concatenation of circumstances which have arisen entirely 
by chance. We can describe what has happened, but with that 
description all possibility of knowledge ends." 51 Kant had 
already anticipated this conclusion for he had said that one could 
never know the ultimate nature of things, the Ding an sick. 
Consciousness, he thought, is restricted to the world of pheno- 
mena ; it cannot invade the realm of the noumena. He did not 
adhere strictly to this in his ethical doctrines, but his followers 
adhered to his positivist views long after they had abandoned his 

One of the first, however, to give definite statement to the 
philosophy of positivism was Auguste Comte (1798-1857), who 
was also one of the first to establish sociology as a separate science. 
This was no coincidence, for the two are mutually dependent, and 
arise from the same premises. In his Cours de philosophie positive^ 
Comte outlines the three evolutionary stages through which he 
believes science and society have passed : the theological, the 
metaphysical, and the positive. 52 In the theological stage, he 
says, imagination plays the principal role and man interprets his 
environment in terms of gods and spirits. At the metaphysical 
stage universal ideas or energies are used to explain the universe, 
and here the idea of nature is substituted for the idea of God. The 
third stage, the positive, subordinates both imagination and 
reflection to experience. Truth is said to consist of " empirical 


facts." And by observing the succession of these facts one is 
able inductively to find certain laws of relationship. He divided 
the sciences into mathematics, astronomy, physics, chemistry, 
biology, and sociology. The latter is a " social physics " and its 
task is to discover the " laws " that govern social life. By con- 
ceiving of society as an organism and by applying the scientific 
notion of cause and effect to its development, Comte thought he 
could explain its evolution mechanically and logically. 

The implication of positivism, as carried further by the 
followers of Comte, is that social phenomena, like all natural 
and physical phenomena, can be studied by the scientific method, 
and that human phenomena, like physical phenomena, obey 
certain laws of nature which can be inductively discovered by 
examining a succession of events empirically. These laws do 
not transcend experience, according to the positivist, but are 
found immanently in things themselves, and behind them is the 
compulsion of nature, which, independent of individual will or 
desire, determines the course of events. And just as the physical 
scientist finds compulsion behind physical law so the positive 
jurist finds compulsion behind governmental law. For both it 
is compulsion that is the criterion of law. Just as there is no 
place for value judgments in physical science so there is no place 
for value judgments in social science ; as the physical scientist 
is unconcerned with the ethical or aesthetic implications of 
conclusions arrived at by an " objective analysis " of empirical 
" facts," so the social scientist is unconcerned with the good or 
bad implications of the conclusions of his observations. The only 
task left to social science and jurisprudence is the description of 
events and the induction from these events of general laws of 
causality the evaluation of the goodness or badness, the justice 
or injustice, of particular events being regarded as not only 
irrelevant scientifically but incompatible with the scientific 
method. With value judgments (apparently) eliminated, con- 
science is denied a valid role in the ascertainment of truth. 

The effect of positivism upon legal thought will be dealt with 
in more detail later, but certain generalizations can be made now. 
By rejecting everything that transcends experience, positivism 
undermines the idea of law as being filled with substantive content 
in the sense of eternal truths and values. It leads to a separation 
of will and norm, fact and standard, and destroys the Bindung 
and mutual dependency which will and norm had in integral 
liberalism. Standards can no longer be derived from facts or 


facts from standards. Positivism severs finally the realm of the 
Sein from the realm of the Sollen. In consequence of this separa- 
tion, toward the turn of the century, two schools of jurists arose : 
the Neo-Kantians who restricted themselves to the realm of the 
Sollen and rejected all substantive criteria of law, and the Neo- 
Hegelians who restricted themselves to the realm of the Sein and 
rejected all normative criteria of law. The theories of the former 
school led to irresponsibility on the part of the individual and 
those of the latter to irresponsibility on the part of the state. In 
both the integral-liberal concept of freedom becomes degenerate. 


The purely formal comprehension of liberty has led to 
actual non-liberty. . . . Liberty was discovered to be 
protection of the rights of the strong, leaving the weak 


Integral liberalism conceives of freedom as the opportunity 
for the'individual, unrestrained by arbitrary or personal authority, 
to follow the dictates of conscience. The individual is free not 
free to do anything he pleases, but free from any will that is 
arbitrary or capricious. He is free under the law, under the 
impersonal authority of a law that transcends individuals and 
whose content is discoverable by right reason. Integral liberalism 
assumes that individuals will reason from the same premises 
within a framework of values acknowledged by all. It is con- 
science that recognizes and embodies these values and conscience 
that bids the individual to reason rightly, to reason objectively. 
Thus it is conscience that links the transcendent, potential, objective 
order with individual, subjective will. The common recognition 
of certain eternal truths and values links will and norm, fact and 
standard, inseparably together. 

Liberalism, as integrally conceived, takes as its fundamental 
premise the absolute value of human personality. This is re- 
garded as an eternal truth. Since the individual is a moral 
entity, equal in moral worth with every other individual, he has 
certain rights and responsibilities by virtue simply of his humanity. 
Each individual is obligated not only to seek his own freedom 
but the freedom of every other individual. For, without freedom 
for all there can be no freedom (in the integral-liberal sense of 
the word) for any individual. If the rights of each individual 
are not respected there is no assurance that the rights of any 
individual will be protected. Each individual is obligated, there- 
fore, to guarantee the rights of every other individual, rights 
which are peculiar to individuals not as citizens but as human 

In the nineteenth century, however, particularly in the latter 
half of the century, these original concepts of liberalism change. 



Freedom under the law is espoused by nineteenth-century liberals, 
but it differs altogether from its earlier meaning. The concept 
of individuality and the concept of law are altered. The claim 
which integral liberalism makes for individual dignity, autonomy, 
and responsibility rests, in the final analysis, upon the presup- 
position of the essential moral worth of human beings. This 
notion of the absolute moral value of human personality is 
undermined in the nineteenth century in the first half of the 
century by Romanticism which emphasizes individual differences, 
and in the second half by the theory of evolution and the infiltra- 
tion of positivism into all realms of thought. The existence of 
the individual soul cannot be empirically demonstrated and it is 
rejected as scientifically irrelevant, if not invalid. In place of 
the " soul " the scientist substitutes the " psyche," and a new 
science, psychology, a kind of mental physics, lends its authority 
to this change. The scientific principle of cause and effect is 
translated into behaviourist psychology in terms of stimulus and 
response. The " psyche " of the individual, like his body, is 
" explained " in terms of mechanical principles ; mind is either 
equated with body or regarded as an epiphenomenon of body. 
If the latter half of the nineteenth century, as Tillich observes, 
neglects the soul, then it assiduously cultivates the body. 1 Sports, 
gymnastics, and physical culture are emphasized in an attempt 
" to achieve a unified development of the whole personality 
through physical development and discipline." 2 

If science aids men to abandon a belief in the essential spiritu- 
ality of individuals, then capitalism abets this endeavour. " For 
the idea of the end of the world," nineteenth-century capitalist 
society " substituted the idea of progress." 3 Progress means, 
moreover, the progressive betterment of man's material status. 
The aim is simply to provide man with an increasingly better- 
furnished dwelling place, and this is regarded as an end in itself. 
With the growth of the capitalist system, profits are substituted 
for the values of human personality, and material values are made 
the measure of all things. Capitalism, as Tillich remarks, aims 
" to provide the greatest possible number of men with the greatest 
possible amount of economic goods," and " seeks to arouse and 
to satisfy ever-increasing demands without raising the question 
as to the meaning of the process which claims the service of all the 
spiritual and physical human abilities." * Few question why 
men should have more and more economic goods or the meaning 
x For notes to Chapter IV, see pp. 129-30. 


of the eternal striving for profits. Material comfort and the 
accumulation of wealth is a self-sufficient end. As Tillich says : 
" In all of this there is no trace of self-transcendence, of the 
hallowing of existence. The forms of the life-process have become 
completely independent of the source of life and its meaning. 
They are self-sufficient and produce a self-sufficient present. 5 * 6 
From an aspect and means of life, economic activity becomes, 
in the nineteenth century, an end in itself. As a result of the 
increasing dominance of economic activity in man's thought and 
life, all other aims, social and political, are subordinated. The 
state's function becomes that of preserving the system. It 
becomes completely secularized ; the only task assigned to it " is 
the legal protection of the economic life in internal and external 
relations." 8 

As a consequence of its complete secularization, the state 
adopts an attitude of indifference to things spiritual. It affirms 
nothing spiritual ; it is agnostic. Just as it allows individuals 
in the economic sphere to pursue their own interest in their own 
way, within certain formal limitations, so it allows individuals 
in matters spiritual to think, worship, and speak as they please. 
Anything can be done, anything can be said, so long as it does 
not disturb the existing economic order, and so long as it is done 
in conformity with certain formal, procedural requirements. The 
way in which a thing is done or said, how it is done, is the only 
consideration what is done or said is irrelevant. (For example, 
overthrow of the existing order can be advocated so long as it 
does not actually lead to violence.) By its agnosticism the state 
actually affirms spiritual anarchy. Berdyaev has rightly called 
this the " age of sceptical liberty." 7 

It should be emphasized that the liberalism of this age is not 
integral liberalism ; rather, it is a liberalism which retains the 
forms of integral concepts but discards their content. It sub- 
stitutes economic for spiritual content, self-immanence for self- 
transcendence, a self-sufficient here and now for the promise of 
eternal salvation. It substitutes spiritual agnosticism for toler- 
ance within a value system. For the idea of a " calling," it 
substitutes the accumulation of wealth, material comfort and 
pleasure. For the asceticism of early capitalism, which was 
intimately related to Protestant theology, 8 it substitutes frank 
indulgence in worldly goods and pleasures. 


Since the nineteenth century rejects the notion of the absolute 
moral value of human personality it must necessarily reject the 
conclusions derived from this premise. Nineteenth-century 
liberals cling to the notions of equality and freedom but, since 
they reject the content supplied by the idea of the absolute 
moral worth of individuals, these concepts can be conceived only 
in a formal sense. It is formal liberty they espouse, and formal 
equality. Nineteenth-century liberals speak of freedom and 
equality under the law, but they conceive of the law as drawing 
its content from individual wills and interests. Conscience no 
longer supplies the content of law because belief in eternal truths 
and values is discarded. Law is conceived as a rationally devised 
instrument for the attainment of certain social purposes. Hence, 
in the last analysis, the criterion of law can only be the force 
behind it. Expediency replaces Tightness. It is the purpose for 
which men unite and voluntarily subject themselves to the might 
of the community that is regarded as the source of legal obligation, 
rather than the common recognition of the justness of the content 
of law. It is not the justness of a rule that determines the obliga- 
tion to obey it but the compulsion behind it. The content of 
law is irrelevant, since only the form determines its legality. 

Law is not prior to the state but the state is prior to the law. 
Since the criterion of law is coercion, rather than morality, the 
state, as the agency which possesses the most powerful instruments 
of coercion, is prior to law. Individual rights, moreover, become 
rights of citizens rather than rights of human beings. The protec- 
tion of rights rests solely upon the state, since rights are divorced 
from moral responsibilities. Rights tend to become equated 
with interests, with interests, moreover, which have sufficient 
force behind them to compel recognition on the part of the 
weaker members of society. Integral liberalism conceives of 
individual rights as being rooted in the spirituality of individuals ; 
formal liberalism thinks of them as social concessions properly 
speaking not rights at all. 

When the nineteenth-century liberal spoke of freedom and 
equality for individuals he meant freedom and equality for 
individuals as political units, not as human beings. As Berdyaev 
observes, this " emphasis upon man as a citizen covered and 
obscured the concept of man as a free spirit belonging to another 
order of being, and on the other hand it obstructed the vision of 


man as a labourer and producer." 9 The state protected legal 
rights, not human rights, and the rights of the individual were 
" confined to the formal and political sphere of his life and were 
not conceived as extending into the economic sphere. 35 10 

It was immaterial for the notion of law (as conceived by formal 
liberalism) whether one individual was stronger economically 
than another, whether one individual, by virtue of the economic 
power at his disposal, had greater actual freedom than another ; 
the law protected the formal freedom and equality of each. It 
was not concerned with actual freedom or actual equality. The 
nineteenth-century state, as Anatole France has observed, " for- 
bade in majestic equality the rich as well as the poor to steal 
bread and to beg on the street corners." ll Freedom as con- 
ceived by integral liberalism consisted of substantive human 
rights ; freedom, for the formal liberals, consisted simply of formal 
rights, and meant the securing of the rights of the stronger 
individuals. Thus, liberty turned out to be " the protection of 
the rights of a privileged minority, the defence of capitalistic 
property and the power of money." 12 

The liberals of the seventeenth and eighteenth centuries spoke 
of the protection of the rights of property, but they had a very 
different conception of property from that held by nineteenth- 
century liberals. They thought of property as an attribute of 
personality, and, while they acknowledged that property might 
be unequally (but not inequitably) distributed, they thought that 
each individual would have some. It was not corporate property 
they defended. " Yet," as Crane Brinton points out, " through- 
out the nineteenth century and into the twentieth, in the industrial 
countries, the doctrine of natural rights was used to defend a kind 
of property which in its extension, in its concentration in relatively 
few hands, in its very nature, was totally different from the 
property with which Locke and his followers were familiar." 13 
Moreover, the seventeenth and eighteenth centuries, unlike the 
nineteenth, did not divorce rights from responsibilities. 

When Adam Smith spoke of freedom he had a very different 
notion of freedom from that of nineteenth-century liberals. He 
wrote, for example : 

Though every man may, according to the proverb, be the whole 
world to himself, to the rest of mankind he is the most insignificant 
part of it. Though his own happiness may be of more importance to 
him than that of all the world besides, to every other person it is of 
no more consequence than that of any other man. 14 


And in another place : 

The wise and virtuous man is, at all times, willing that his own private 
interest should be sacrificed to the public interest of his own particular 
order or society. He is, at all times, willing, too, that the interest 
of this order or society should be sacrificed to the greater interest of 
the state or sovereignty, of which it is only a subordinate part : he 
should, therefore, be equally willing that all those inferior interests 
should be sacrificed to the greater interest of the universe, to the 
interest of that great society of all sensible and intelligent beings, of 
which God himself is the immediate administrator and director. 16 

Above the positive law Smith recognized a higher law : 

Every system of positive law may be regarded as a more or less imperfect attempt 
towards a system of natural jurisprudence, or towards an enumeration 
of the particular rules of justice. As the violation of justice is what men 
will never submit to from one another, the public magistrate is under 
a necessity of employing the power of the commonwealth to enforce 
the practice of this virtue. ... To prevent the confusion which 
would attend upon every man's doing justice to himself, the magistrate, 
in all governments . . . undertakes to do justice to all. . . . Some- 
times what is called the constitution of the state, that is, the interest 
of the government ; sometimes the interest of particular orders of 
men who tyrannize the government, warp the positive laws of the 
country from what natural justice would prescribe. . . . Grotius 
seems to have been the first to attempt to give the world anything 
like a system of those principles which ought to run through, and be 
the foundation of the laws of all nations. 16 

Integral liberals, like Adam Smith, believed that the state existed 
" to do justice to all." They recognized that men must make a 
constant and vigilant endeavour to bring positive law into con- 
formity with the principles of natural justice. They regarded 
a positive law that served the particular interests of one group as 
" warped." In short, integral liberalism presupposed the exist- 
ence of certain eternal, transcendent truths and values ; by the 
end of the nineteenth century, with the infiltration of positivism 
into all realms of thought, this belief was abandoned. Pre- 
suppositions that had been regarded as self-evident in the seven- 
teenth century were subjected by nineteenth-century positivism 
to a scrutiny that declared them to be highly doubtful and 
scientifically untenable. 


The positivist sociologists, particularly those influenced by 
Darwin, " sought for absolute mechanical social laws whose 
inevitable operations produced all social, political and iural 


institutions, as completely apart from human will as the motions 
of the planets." 17 For the transcendent order of the seventeenth 
and eighteenth centuries, which was realized by will guided by 
reason but was not dependent upon will for its existence, they 
substituted an immanent order which was neither dependent 
upon will for its existence nor realized by will. It was discover- 
able not by right reason but by inductive " scientific " methods. 
Similarly, " the positivist jurists sought to find laws of morals 
and laws of legal and social evolution analogous to gravitation, 
conservation of energy and the like, and they expected to find 
these laws through observation and experience." 18 Where the 
historical jurist, in examining the development of law, " found 
metaphysical laws" behind this growth, "the mechanical sociol- 
ogist found physical laws." 19 Both agreed that the content of 
law was given. To the historical jurist, however, the content was 
something transcendent, to the positivist jurist the content was 
something immanent. What was the result of this new view ? 
Pound says : 

The old natural law called for search for an eternal body of principles 
to which the positive law must be made to conform. This new natural 
law called for search for a body of rules governing legal development, 
to which law will conform do what we may. The operation of these 
same rules will change it and change it in accordance with fixed and 
definite rules in every way comparable to those which determine the 
events of nature. The most man may do is to observe and thus, it 
may be, learn to predict. For the rest nature will take her inexorable 
course and we may but impotently wring our hands. If law is an 
inevitable resultant, if in making it or finding it, legislator or judge is 
merely bringing about " conformity to the de facto wishes of the 
dominant forces of the community," conscious effort to improve the 
law can be effective in appearance only. 20 

The historical jurist denied that the legislator had any creative 
function. He " said that the law could no more be made than 
language. Each was a growth upon the basis of a received tradi- 
tion." 21 The positivist jurist not only denied to the legislator 
any creative function but " added a doctrine of juristic futility." 2a 
Jurisprudence, too, became a formal science. Divorced from 
ethics and philosophy, it concerned itself simply with developed 
systems of law, with legal forms rather than legal contents. The 
question of what ought to be was no longer a valid or relevant 
problem for the jurist. He was concerned only with what was 
given, with positive law as he found it. This way of thinking, 
it should be observed, was quite different from the eighteenth- 


century notion, for, as Pound points out, even if the eighteenth- 
century theory " put the basis of legal systems beyond reach of 
change " it did urge men " to scan the details and to endeavour 
to make each part conform to the fixed ideal plan. It admitted 
that legislator and jurist each had a function." 23 


In Germany, jurisprudence was transformed into a formal 
science through the works of men like Gerber, Laband, and 
Jellinek. It is with them, that is, about 1870, that liberalism 
might fairly be said to decline. It is with them that will and 
norm, fact and standard, began to be separated so that at the 
turn of the century either one or the other had to be made 
absolute. And it was with this complete separation of fact and 
standard that liberalism became degenerate. 

The study of law prior to Gerber had usually been included 
in what was called allgemeine Staatslehre or Politik, studies which 
also included political theory. With the introduction of the 
concept of society and the consequent development of sociology 
as a separate study, the study of law was divorced, for a time 
at least, from sociological considerations. Under the influence of 
positivism, moreover, the study of law was confined to an 
analytical examination of the existing body of positive law, so 
that under Gerber and those who followed him an attempt was 
made to establish a " science of law," a Staatsrechtswissensckqft, 
which would exclude general political considerations and political 
theory. It was to be a study of law as such without relation. to 
general social or political problems, ends, or purposes. The new 
school of jurists accepted the law as they found it, they accepted 
the content of law as given and concerned themselves only with 
the formal analysis of the existing body of law. 

Liberalism, in its integral form, merged, it will be recalled, 
two self-sufficient theories of obligation. 24 These were merged 
historically and without any conscious recognition of their mutual 
independence and inconsistency. Law was regarded as the pro- 
duct of individual consent, but it was regarded also as the embodi- 
ment of eternal and absolute truths, secured transcendentally in 
the natural order. Man was obligated to obey law, according 
to the first theory, because it was to his own interest (expedient) 
to do so ; he was obligated, according to the second theory, 
because he recognized through his conscience that the law 
embodied objective truth, eternal principles of justice. The 


historicism and positivism of the nineteenth century destroyed 
belief in eternal, transcendent, truths and values. Principles of 
justice were regarded as metajuristic and, hence, irrelevant to a 
study of law that endeavoured to be scientific. It was not content 
but form that distinguished law. Attention was focused upon 
procedure, on the way in which law was enacted, rather than 
upon what was enacted. 

To integral liberals the " rule of law " was synonymous with 
the rule of just principles. To formal liberals the " rule of law " 
came to mean the automatic application of rules regardless of 
their content. For integral liberals the Rechtsstaat was a " state 
of rights " based upon justice to all ; for formal liberals the 
Rechtsstaat was a state in which administrative discretion was 
reduced to a minimum ; it was a state in which governmental 
law was applied as automatically and impersonally as the laws 
of nature. All substantive, objective limitations to will were 
removed ; only formal, procedural limitations were left. Limita- 
tion could only be secured immanently and formally. Any 
limitation now must necessarily be self-limitation or force ! 

Translated into political reality, this meant that there was no 
limitation, except that which was self-imposed, upon the law- 
making organs of the state. Equality and freedom under the law 
no longer meant substantial equality and equal freedom but 
equal application of the law whatever its content to all individuals. 
As Heller has expressed it, the notion of equality before the law 
became simply " a formal administrative maxim which demanded 
balanced application of law to the individual case without regard 
to the just or unjust content of the law . . . it was only a question 
of arithmetical application of the law, no longer of justice or 
lightness." 25 Thus the liberals of the latter part of the nine- 
teenth century, men like Gerber, Jellinek, and Laband, still 
espoused freedom for the individual under the law, but because 
of their concept of law, the freedom they espoused was a formal, 
technical freedom no longer the substantive freedoms espoused 
by the liberals of the seventeenth and eighteenth centuries. 
Their conception of liberalism consequently might fairly be dis- 
tinguished from integral liberalism by calling it formal liberalism. 


Having denied that there was any other law than positive 
law, having denied that there was a transcendent order, the 
positivist liberal jurists were forced to conclude that the source 


of law is the state. They conceived of the state as a juristic 
person with a will of its own. Theoretically this subordinated 
the monarch to the rule of law, and by positing a state will they 
were able, abstractly at least, to distinguish the will of the state 
from the will of the monarch. As Gerber expressed it : " The 
State's power to will, political power, is the law of the State." 2tt 
It was not individuals, he contended, who decided the content 
of will but the state as a juristic person. The will of the state 
was, in a sense, the will of all individuals united politically. The 
will of the state " ist das Herrschen, d.h. rechtliches Handeln im 
Interesse des Staatszweckes mit einer das ganze Volk verpflichten- 
den Wirkung." 27 There is an attempt here to retain an 
impersonal source of law. 

Gerber admitted, however, that for practical purposes " the 
monarch formally absofbs the personality of the State into his 
own personality," 28 but he insisted that the will of the state was 
a real, not a fictitious, will, that " this power to will is something 
existing in and for itself." 29 This distinction between the will of 
the monarch and the will of the state is a tenuous one, and for 
practical purposes they are essentially indistinguishable. To say, 
therefore, that the source of law is the will of the state as a juristic 
person, and to say at the same time that it is only made manifest 
through the will of the monarch, is to say, for practical purposes, 
that the source of law is the will of the monarch. Gerber did not 
carry the idea so far, but this inference from his statement is 
logical. 30 

Gerber thought that the power of the state to will was limited 
by the ends which it pursued. 31 He thought for this reason that 
the state's power was not absolute but limited. The reasoning, 
however, is fallacious. Since, according to his theory, the state 
itself determines what ends it shall pursue, it also determines what 
it wills. Moreover, to say that will is limited by purpose is 
meaningless, for will without purpose is inconceivable. It is 
necessary to will something in order to will at all ; willing implies 
choice and decision. The limitation which Gerber posits, there- 
fore, is highly abstract and formal, and for all practical purposes 
is no limitation at all. 

The fiction of the state as a juristic person, somehow apart 
from the governmental organs through which its will is made 
manifest, was accepted by Paul Laband. Only the state can 
enforce rules which are binding on individuals ; it alone, says 
Laband, can demand compliance, suggest or prohibit action on 


the part of its citizens. This is the essential thing which distin- 
guishes the state from other organizations and persons. Its rules 
or law, consequently, are the only law. The distinguishing aspect 
of law, moreover, is its binding force, its form, not its content. 
" The specific activity of the power of the State, its rulership," 
Laband declares, " appears not in the production of the content 
of law, but only in sanctioning the validity of law, in equipping 
a legal prescript with power to bind, with outer authority." S2 

The parliament may decide the content of law but it does not 
become law until it is sanctioned by the monarch. To Laband 
" the sanction is the heart of the whole process of legislation ; everything 
that precedes it in the way of legislation is only preparation for it, 
fulfilment of necessary conditions ; everything that follows it is 
necessary legal consequence of the sanction, unalterably brought 
about by it." 3S Zorn accepted Laband's theory but put it even 
more directly when he declared : 

The sanction is that public law act which perfects the law. In the 
sanction lies the command in law. Whoever issues the command 
is the legislator. The sanction is the highest and true act of 
legislation ; therefore the right of sanction belongs only to the bearer 
of sovereignty. 34 

The " bearer of sovereignty," of course, was conceived to be the 
state as a juristic person manifesting its will through the will of 
the monarch. For practical purposes, if not theoretical, the 
" bearer of sovereignty " and the " true " legislator, therefore, 
was not the parliament but the monarch. The parliament might 
determine the content of law, but it was only binding if sanctioned 
by the sovereign, which for all practical purposes meant the 

It would seem from such a theory that the monarch was 
absolute, that the sovereign, at any rate, could will as he pleased. 
There would seem to be no limitation upon arbitrary or capricious 
action on the part of the sovereign. Some of the critics of Gerber 
and Laband pointed this out. The formal jurists replied, how- 
ever, that this was not the case, that they did acknowledge that 
there was limitation this being, in fact, their claim to the title 
of liberals. " The imperium in the modern civilized State," 
wrote Laband, "is no arbitrary power, but one determined by 
legal prescriptions. It is the characteristic of the Rechtsstaat that 
the State can require no performance and impose no restraint, 
can command its subjects in nothing and forbid them in nothing, 
except on the basis of a legal prescription." 36 Obviously, the 


whole crux of the matter rests upon the conception of " a legal 
prescription." Since, as shown above, Laband thought that 
" a legal prescript with power to bind " could only be issued by 
the state it follows that the only limitation upon the will of the 
state is the will of the state. In other words the only limitation 
is self-limitation. 

Now so long as a theoretical distinction was made between 
the will of the state and the will of the monarch, Laband could 
say that the law which bound the state was independent of a 
personal will. But, even admitting this highly artificial and formal 
distinction, it is still difficult to see how self-limitation is actual 
limitation. If the distinguishing thing about law is the sanction 
behind it, who is to coerce the state into obedience, if conceivably 
it fails to be bound by its own law ? The answer is that only that 
which the state acknowledges to be law is law ; hence, it cannot 
fail to be bound by its own law. This is reasoning in a circle, but 
it is typical of the thought of" liberals " like Laband and Jellinek. 


Since the state itself says what law is, the state can only be 
conceived as self-limiting. " It is not disputed," Laband wrote, 
" that there must be a supreme and highest power, which is 
subordinated to no other earthly power, and which is in truth 
the potestas suprema. The criterion of supreme and highest power 
exists in the fact that it is determined only by itself and can 
receive no legally binding prescriptions from any other power/' * 
In similar vein Jellinek declared : " . . . a power to rule 
becomes legal by being limited. Law is legally limited power. 
The potential power of the community is greater than its actual 
power. Through auto-limitation it achieves the character of 
legal power. " 37 When Jellinek says "law is legally limited 
power " he is simply saying law is limited by law which 
means nothing. It seemed to mean something to the formal 
jurists, however, and his theory of auto-limitation won wide 
acceptance among German jurists. 

Actually Jellinek implied that the power of the state is un- 
limited. Potentially at least, the state is omnipotent. It is a 
doctrine that foreshadows in many striking ways the doctrine of 
the National Socialists. He defined sovereignty as "... the 
exclusive capacity of the power of the State to give its ruling 
will a universally binding content, to determine its own legal 
order in every direction " and " the impossibility of being legally 


restrained by any other power against its own will." 38 The 
logical implication from this is that the state is potentially omni- 
potent. The state can make any content binding that it desires. 
But Jellinek, irked by critics who contended that he made the 
state omnipotent, declared that sovereignty 

is not State omnipotence. It is legal power and bound by the law. 
To be sure, it suffers no legal limits : the State can rid itself of every 
self-imposed limitation, but only within the forms of law and by creating 
new limits. Mot the individual limit but the fact of limitation is the permanent 
factor. As little as the absolutely restricted State exists, so little does 
the State with absolutely boundless sovereignty. 39 

Now actually of course no state is omnipotent in the sense that it 
can do anything it pleases. The Fascist state recognizes certain 
self-imposed limitations. As one writer says, " Fascism could 
easily justify its absolutistic and antiliberal tendencies in the 
elaborations of the theory of auto-limitation so soon as it could 
assume the congruence of the Fascist party with the state, and 
of the state with the nation." If the " fact of limitation " is 
sufficient criterion for the Rechtsstaat, then the Fascist state is a 
Rechtsstaat. It acknowledges no individual limitation to its power, 
it recognizes no substantive individual rights, but according to 
Jellinek this is not a necessary criterion of the Rechtsstaat. It 
was, however, for the integral liberal! 

What Jellinek says, in effect, is that the legality of an action 
does not depend upon the content of the action but on the form 
of the action. Anything can be done if it is done according to a 
certain legal procedure. And even the procedure can be changed 
so long as some new procedure (any procedure) is substituted. 
The limitation he envisages is purely formal, technical, pro- 
cedural. If the state acknowledges some limitation to its power 
it is a Rechtsstaat. This is quite a different notion from that 
espoused by Fichte. Fichte and Humboldt, as has been shown, 
recognized substantive, as well as formal, limitations upon the 
power of the state. Jellinek recognizes no substantive limitations. 
Jellinek contends that the legislative power of the state is bound 
only by formal, procedural limitations. In this sense it is under 
the law, but in no other sense. Such a theory, however much 
Jellinek may have doubted it and he did prepares the way for 
despotism ; as a matter of fact, it makes it possible to legislate 
despotism into existence, just as the Reichstag eventually did in 
1933. The legislature can legislate itself out of existence and 
adopt a new procedure that dispenses with its services. 


If the state itself determines its own competency, the extent 
of its own power and the content of its own law, who is to say the 
state is wrong ? By abolishing from jurisprudence all considera- 
tions of right and wrong, justice and injustice, Jellinek and the 
other formal jurists might consistently answer that the question 
is invalid and irrelevant. From their point of view it is irrelevant, 
from the point of view of an integral liberal it is not only a valid 
question but a crucial one. To the latter the Rechtsstaat is not 
simply a legal formula, nor a device to provide equal application of 
positive law (whatever its content) to every individual, but it exists 
to provide substantial justice to each individual, justice in terms 
of a law that is higher and more binding than any positive law. 

The notion of an impersonal rule of law which the formal 

jurists espoused was premised upon the concept of the state as a 

juristic person. Jellinek contended that this idea of the state as a 

juristic person was, indeed, an abstraction but not a fiction. 41 

But he admitted that a state without organs was inconceivable 

" Der Staat kann nur durch das Medium von Organen walten ; 

denkt man die Organe hinweg, so ist auch die Vorstellung 

des Staates selbst verschwunden." 42 In similar vein, Triepel 

declared that the organs were the state and that without them 

the state was nothing. 43 Hanel, too, contended that the state 

had no reality apart from its organs. 44 

The state, then, as conceived by the formal jurists, was an 
intellectual abstraction although its will was made manifest 
through its organs. The high abstraction and formality of their 
thinking is demonstrated by this kind of reasoning. The state, 
as a juristic person, as an intellectual abstraction, has a will, but 
this will is only made manifest through its organs. Hence, for 
practical purposes, the will of the state and the will of its organs 
are indistinguishable. This comes very near to saying, if it does 
not actually acknowledge, that a command is law if it issues from 
an organ of the state. By positing the state as an abstraction 
with an abstract will behind the law, the formal liberals theoreti- 
cally avoid saying this, but for practical purposes there is no one 
able to distinguish the will of the state from the will of its organs. 
Their notion, then, of an impersonal rule of law rests upon 
casuistic reasoning. 


From the conception of law as a rule sanctioned by the state, 
as a manifestation of the will of the state, it follows that individual 


rights have to be conceived as legal rights, as concessions made by 
the state. According to liberalism in its integral form an indivi- 
dual has certain rights by virtue of his humanity ; according to 
formal liberalism he has certain rights as a citizen, as a member 
of a legal community. As one writer has expressed it the theory 
of the formal jurists " proceeds not from the individual but from 
the State ; whatever rights a person has he has not by virtue of 
being an individual but because the State itself sets certain 
auto-limitations to its power." 45 

There can be rights against the state only when the individual 
and the state are both subordinated to the same order of law. 
But when the state is conceived as the source of law, and hence 
above the law, there can be no rights against it. Individual 
rights can only be thought of as concessions granted by the state. 
If they are concessions they can, theoretically and practically, be 
granted or withdrawn, extended or limited, at will. They are 
not absolute rights, secured transcendentally, but relative rights, 
secured immanently in a particular legal system. Rights are no 
longer conceived of as being antecedent to the state but as 
depending upon the state for their existence. " Only as a member 
of the State," says Jellinek, "... is man the bearer of rights." 46 
" Personality," in fact, he says, " is iuris publici" 47 

The slave, Jellinek contends, possessed no personality before 
he was freed by the state. As he puts it : 

Der Sklave war, ehe der Staat ihn befreite oder doch in beschranktem 
Sinne als mit Verfugungsgewalt iiber sein peculium ausgeriistet 
anerkannte, nicht Person, auch nicht in dem Sinne, dass sie ihm als 
nicht zue Anerkennung gekommene Qualitat anhaftete. Als Mensch 
war er natiirlich anerkannt. Dies ausserte sich aber nur darin, dass 
er zwar nicht Rechtssubjekt, wohl aber Pflichtsubjekt war. Aus dem 
Wesen des Menschen ergibt sich historisch und logisch als notwendig nur die 
Pflicht, aber nicht das Recht gegen den Stoat** 

If an individual has rights against the state, he has them, Jellinek 
contends, not by virtue of his humanity but by virtue of his legal 
personality, that is, as the member of a legal community. Rights 
rest upon status. 

It is not correct, Jellinek says, to speak of individual liberties 
but only of individual liberty. 49 And what is this liberty or 
freedom ? He answers : " Alle Freiheit ist einfach Freiheit von 
gesetzwidrigen Zwange." It is a significant characteristic of his 
thought that he uses gesetzwidrig rather than rechtswidrig. Free- 
dom means freedom from all illegal compulsion, not necessarily, 


however, freedom from unjust compulsion. In other words, the 
individual cannot be commanded to do anything except by law, 
his freedom can be limited only by legal prescription. Individual 
freedom, therefore, is a formal not a substantive freedom ; it is 
relative, not absolute. The dividing line between the sphere of 
state activity and the sphere of individual freedom is a purely 
formal not a material one. 

If individual rights are to mean anything, there must be some 
way to guarantee them against arbitrary aggression on the part of 
the state. Jellinek contended that individual rights were secured 
by subordinating the executive to the law and by providing 
machinery by which the legality of administrative acts might be 
challenged by individuals. 51 Jellinek said that the executive 
could only command the individual when authorized by a legal 
prescription. Every act had to find its justification in law. He 
thought that the administrative courts of his time adequately 
provided opportunity for the individual to seek redress for any 
illegal administrative acts. It is a formal guarantee which he 
provides and not a substantial one. 


Jellinek and the other formal jurists do not deny that there 
are social, psychological, and moral checks to state power, but as 
jurists they are not concerned with these. They admit that there 
are cultural and moral forces behind the law, but as jurists they 
recognize only the sanction behind the law as its distinguishing 
feature. Jellinek frequently refers to the fact that the purpose 
of law is determined by the interests of the community (Gemein- 
interesse) 52 and he sees this as a check upon arbitrary individual 
will, as a check upon both individuals and the state. "Jedes 
Individualinteresse," he writes, " findet rechtliche Anerkennung 
nur dann, wenn diese Anerkennung auch im Gemeininteresse 
geboten ist . . . Uberwiegend im Gemeininteresse anerkanntes 
individualles Interesse ist Inhalt offentlichen Rechtes." 53 The 
content of public law is determined by the interests of the com- 
munity, but important as this content is, it is not, for Jellinek, the 
criterion of law. Obligation, as viewed by the formal liberals, 
is not based, in the final analysis, upon the content of law but 
upon the compulsion behind it. 

Law, as understood by integral liberalism, was filled with 
substantive, ethical content. Law was emptied of all ethical 


content by the formal jurists. As Heller points out, law for the 
integral liberal had : 

Seine Eigenschaft, seine Kraft als Gesetz, seine " Unverbruchlich- 
keit "... ausschliesslich . . . weil es als autonomer Beschluss der 
die Gemeinschaftswerte reprasentierenden volonte generale gilt. Von 
irgendeiner Verwaltungsvorschrift oder einen Rechtsspruch unter- 
scheidet es sich keineswegs durch seine Rechtssatzeigenschaft, sondern 
lediglich durch seine erhohte materielle Geltungskraft. 54 

It is form alone that distinguishes law for the positivist jurist. As 
Laband said on one occasion : " es gibt keinen Gedanken, welcher 
nicht zum Inhalt eines Gesetzes gemacht werden konnen" 66 It is 
not the recognition of the inherent justness of the content of law 
that makes the individual submit to it but simply the compulsion 
behind it. 

Law is conceived as the resultant of a conflict of individual and 
group interests and wills. So long as there exists a community 
of interests, so long as conflicting groups are convinced that the 
maintenance of the existing political, economic, and social system 
is essential to the realization of their wills, the system holds 
together. When, however, group interests become irreconcilable 
within the existing framework of political institutions, when 
compromise no longer satisfies them, the system crumbles under 
the might of the strongest group. 

A political order based upon the conception of law as the 
resultant of the conflict of group interests and wills can only 
survive so long as the various groups within the system are willing 
to abide by certain formal, procedural rules and so long as they 
are willing to compromise their interests. But such a system 
necessarily rests upon a precarious basis and is ever prone to give 
way to the strongest will and interest. Without a common 
recognition of certain objective values, transcending subjective 
interests, a stable social and political order is impossible. The 
existence of the state demands that subjective interests be sub- 
ordinated to values affirmed by all, or nearly all, of the members 
of the particular society. Without such an affirmation there is 
anarchy, and anarchy manifests itself politically as tyranny. 


Die naturwissenschaftliche Erkenntnistheorie der ge- 
samtm heutigen Staatslchre gestattet ihr . . . nur einen 
materialistischen Realitatsbegriff, sowie dessen Kor- 
relat in Gestalt eirus Als-Ob-Idealismus. 



The empirical theory of knowledge, which by the end of the 
nineteenth century had been accepted almost generally, per- 
mitted, as Hermann Heller observes above, but two alternative 
views of reality. Reality could be conceived either as being 
composed of matter obeying mechanical principles or as a 
reflection of human purpose, that is, a fiction. In either view 
metaphysical considerations were ignored or denied. 

Materialism, as the denial of everything supernatural, " holds 
. . . that what happens in the world is never the result of the 
agency of independent spiritual or mental powers, but is always 
explicable even when, owing to the lack of sufficient knowledge, 
it cannot at the time be explained * as a consequent of the com- 
position of natural forces. 5 " * It affirms, as Chapman Cohen 
says, " the belief that the state of the world, or of any portion of 
it, at any given time, is the exact consequence of the distribution 
and conjunction of forces preceding that moment/* 2 It affirms 
a mechanical determinism. 

Now the effect of this point of view upon ethics is particularly 
significant. Since it denies freedom of will, for one thing, it 
denies that man can be held responsible for his acts. As Joad 
says, "... if men's wills are not free, praise is as irrelevant as 
blame is impertinent, and tout comprendre est tout pardonner is the 
beginning and end of ethics." 3 It removes men's acts to a realm 
beyond good and evil. Since materialism denies the existence 
of objective values there can be no such thing as good and bad, 
beautiful and ugly, except as expressions of purely subjective 
feeling. Materialism denies that there are any objective, meta- 
physical qualities inherent in things or acts. Ultimate and 
absolute values are rejected. 

1 For notes to Chapter V, sec pp. 130-2. 


The alternative view of reality permitted by the dominant 
empirical theory of knowledge tends to make truth relative to the 
observer. Moreover, it tends to identify truth " with emotional 
satisfaction." 4 Relativistic and subjectivistic, pragmatism denies 
the existence, or at least the possibility, of finally discovering 
absolutes and ultimates. As a practical philosophy it suggests 
that men should act " as if " certain things were true, irrespective 
of whether they actually are true or not, especially if the things 
assumed to be true prove emotionally satisfying and " work." 5 
As Joad observes : " Pragmatism subjects truth ... to the 
domination of the human mind, and insists that in the long run 
that alone is true which it suits human beings to think true." 6 

Pragmatism, like materialism, rejects absolute values, but it 
goes beyond materialism by saying that individuals are justified 
in acting "as if" certain things are true and good. It makes 
truth and good, however, relative to human beings and provides 
no objective standard by which truth and good may be measured. 
It ministers, as Joad points out, " to human complacency by 
assuring human beings that right and wrong, beauty and ugliness, 
reality and unreality, are not external facts, features of the 
universe to which human beings must in the long run subject 
themselves, but are the products of human consciousness and, 
therefore, amenable to human desires" 7 By exalting human desire 
to the position of a final standard for making value judgments 
pragmatism tends to lead, in its extreme form, to complete sub- 
jectivism and irresponsibility. 

It leads to a rejection of objectivity that makes it possible for 
a Nazi to declare : 

We perceive and acknowledge no truth for the sake of truth, no science 
for the sake of science. ... If objectivity is interpreted as a pre- 
tension to the absolutism of scientific perception, as the pretension for 
existence apart from living foundations, then such a claim will not 
only be repudiated as the arrogance of a superhuman being, but the 
whole pretension will be unmasked as self-deception, yea, even false- 
hood. From our national and historical perspective we can grasp 
after truth, and if we seek it with sincerity, it will reveal itself to us 
according as our character is, and will be measured by the needs of 
our life. 8 

Truth and falsehood, right and wrong, beauty and ugliness, 
become relative to individual perspective, and, with no objective 
standard of truth, good, and beauty, there is no way of saying 
that what appears as falsehood, ugliness, or brutality viewed from 


one standpoint is not, indeed^viewed from another, truth, beauty, 
and heroism. Pragmatism ends, like materialism, by placing 
human acts beyond absolute judgments of good and evil. 


By the end of the nineteenth century, German jurists had 
split into two opposing schools : the Neo-Hegelians, who focused 
their attention upon legal content to the exclusion of all normative 
considerations, and the Neo-Kantians who concerned themselves 
with normative elements of law to the exclusion of all considera- 
tion of legal content. Although both apparently repudiate 
empiricism, actually their theories are coloured by one of the two 
alternative views of reality sketched above. The Neo-Hegelians 
start, consciously or subconsciously, from the point of view of 
materialism ; the Neo-Kantians from that of pragmatism ; the 
former are enmeshed in " factualism " ; the latter in an " as-if " 

Positivism had led to a complete separation of fact and 
standard, will and norm. It was possible now only to make one 
or the other absolute. They could no longer be conceived as 
complementary, as they had been by integral liberalism. 9 The 
result of this separation and of the focusing of attention upon 
either fact or standard to the exclusion of the other was to divorce 
the concept of law completely from any absolute idea of justice 
in the form of eternal and absolute truths transcending individuals. 
Both schools of thought fostered irresponsibility ; the Neo- 
Kantians, individual irresponsibility, and the Neo-Hegelians, 
irresponsibility on the part of the state. In the final analysis, 
both placed law beyond the boundaries of good and evil. Any 
action was lawful, according to the Neo-Kantians, if it conformed 
to certain formal, procedural requirements. As the criterion of 
law they substituted the manner of enactment for the content of 
the action. The Neo-Hegelians, on the other hand, rejected all 
normative criteria and regarded law as a social product and 
instrument and distinguished it by the physical coercion behind 
it. Law was thought of as a social instrument and not as the 
embodiment of an eternal idea of right. Law was conceived as 
existing less to protect individual rights than to promote social 

As democratic institutions developed and law became 
identified more and more with the " will of the people," or, 


more specifically, with the will of the parliamentary majority, 
the legitimacy of law was made to depend less and less upon its 
content and more upon the source from which it emanated. In 
the last analysis Recht is equated with might. Coercibility, rather 
than morality, is the thing which distinguishes law. Whether 
the coercion springs from a parliamentary majority or a well- 
organized armed party machine is immaterial when the distin- 
guishing criterion of law is conceived as the force behind it. 
When the form of law alone is considered significant there can 
be no substantive limitation to arbitrariness ; there can be no 
guarantee of freedom as integral liberalism conceived of it. 

By separating will and norm, interest and ideal, fact and 
standard, and by emphasizing one of these as the criterion of law 
to the exclusion of the other, responsibility is made impossible, 
since the idea of responsibility requires both notions. A will, 
unrestrained by a recognition of transcendental standards, is 
limited only by its physical capacity and by the might of a 
stronger will. A norm without a will to actualize it is equally 
devoid of imposing responsibility, for the notion of responsibility 
necessarily implies willing to do or not to do something. Order, 
in the final analysis, can only rest upon compulsion, upon the 
will of the stronger, a will which may or may not be numerically 
the largest. 

Both the Neo-Kantians and the Neo-Hegelians, therefore, 
although nominally liberals, espoused a conception of freedom 
that resembled license more nearly than it did the conception 
of freedom held by integral liberals. Under Gerber, Laband, 
and Jellinek, integral-liberal concepts had become formalized ; 
under the jurists who followed them at the turn of the century, 
integral-liberal concepts became decadent. The vocabulary of 
liberalism remained but its thought had been emptied of its 
original substance. The formalism of Laband and Jellinek was 
carried to its logical extreme by the Neo-Kantians in an effort to 
create a " pure " science of law. Regarding jurisprudence 
essentially as a normative science concerned with " what ought 
to be " rather than with " what is," they deliberately divorced 
law from political and social realities and by definition removed 
it to a " pure " realm beyond actuality. By emphasizing norms 
to the exclusion of the wills that must exist in actuality in order 
to apply them/ the Neo-Kantians postulated a realm that may 
have had logical but certainly not actual existence. At any rate 
they assumed the existence of this realm apart from social reality 


and acted, for the purposes of constructing a " pure theory of 
law," " as if" it actually existed. 


The separation of law from political and social reality, begun 
by Laband and Jellinek, was completed by the Neo-Kantians. 
In an effort to establish a " pure " science of law, jurists like 
Rudolph Stammler and Hans Kelsen sought to find the a priori 
principles or assumptions which underlie all law regardless of its 
content. They sought to isolate, in a Platonic sense, the " idea " 
of law which was universal from the content of law which was 
variable. They adopted for this purpose the " critical " method 
of Kant a method which ignores historical development or 
psychological motivation in favour of a deductive search for the 
universal and formal elements of knowledge. They sought to 
find the pure forms of law, the universal elements that are found 
in all law. They assume, of course, that the form of law is 
eternal and immutable and that the content of law is ever 

" The pure forms . . . ," according to Stammler, " are 
nothing but conceptual methods of ordering." 10 It is form and 
form alone which possesses " absolute validity " for Stammler. 
He writes : 

The old endeavour to obtain an ideal law with limited content is 
entirely futile. It is not possible to conceive of a law which would 
really have a content limited in subject matter but which yet would 
hold good for all times and peoples. Absolute validity of conceptions 
can, in legal questions also, be attributed only to the pure forms, in 
which we arrange legal experience according to a fixed and uniform 
plan. 11 

Here is an explicit assertion that it is not the content of law which 
distinguishes it from non-law but the form. Belief in eternal and 
absolute truths transcending individuals is abandoned completely, 
it is only the " idea of law " which is transcendent, which possesses 
" absolute validity." " There are certainly," he contends, 
" pure forms of juristic thought which are unconditionally 
necessary as ordering principles for any content of law whatsoever" 12 
It is these formal, universal elements that are the distinguishing 
criteria of law. 

As Emerson points out " the unity of the pure ideas of law," 
for Stammler, is " only the unity of procedure by which con- 
ditioned legal prescriptions are to be determined in an identical 


fashion, that is, the formal unity of law is for him the unity of 
the method of intellectual apprehension or thinking of law." 13 
" It is for the idea," Stammler writes, " to unify all the con- 
ceptually determined things under an absolute harmony." 14 

Stammler explains the " notion of law " in the following 
manner : 

By the combination of the purposes of a number of men an external 
regulation is implicitly imposed upon them. They are, however, 
subjected to this either in an objectively enduring way or else according 
to subjective whim from one time to another. . . . Not until we have 
the objectively enduring type of social combination do we get the " notion 
of law." Law jappears thus as a necessary part of the system of 
pure principles for ordering consciousness. . . . The law . . . 
signifies inviolable , sovereign, combining will. 1 * 

Law, for him, belongs to the realm of volition. " When we 
formulate a legal principle," as Ginsberg interprets Stammler, 
" we do not assert a fact of experience but rather an end or 
purpose to be fulfilled. By saying that law is a species of will 
we do not mean that it is created by will, or that it is its product, 
but that it is will, that is, one way in which will appears." le 
Stammler sees a social will binding men together for the purpose 
of achieving ends common to them all. Law is an expression 
of this will. It is binding on the creator as well as on the subject, 
independent of individual consent, " das unverletzbar selbstherrlich 
verbindende Wollen" 17 

He is somewhat vague about the binding nature of law, for he 
says : 

Law presents itself as an external regulation of human conduct. By 
this we understand the laying down of norms which are quite inde- 
pendent of the person's inclination to follow them. It is immaterial 
whether a person obeys them because he regards them as right, sub- 
mitting out of respect for the law ; or whether his obedience is due 
to a selfish motive of some sort, fear of punishment, or hope of reward ; 
or, finally, whether he thinks about it at all, or acts from mere habit. 18 

Having discarded the notion of a law " whose content shall be 
unchangeable and absolutely valid " in favour of a " universally 
valid formal method, by means of which the necessarily changing 
material of empirically conditioned legal rules may be so worked 
out, judged, and determined that it shall have the quality of 
objective justice," 19 he has placed himself in the position of 
discarding natural law at the outset and then letting it in again 
through the back door under a different name. He repeatedly 


speaks of "just law " and of a " community of free- willing men " 
as the social ideal by means of which the justness of positive law 
may be determined. 20 

He postulates as the " idea of justice " a harmony of wills, the 
bringing of " all possibilities of desire into the one harmonious 
realm of the will." 21 " The content of a particular aspiration, 
he writes, cc is then fundamentally right if it fits harmoniously, so 
far as one can see, into that totality of aims." 22 That is only 
possible when the individual " directs his will in the sense of what 
is universally valid, guided by the idea of perfect harmony with all 
other will contents." M His " idea of Tightness," however, as 
Emerson points out, " is purely formal, able to take up any 
content." 24 

He does not think that obligation is based upon the content 
of law but rather upon a formal and abstract " idea of justice." 
He avoids answering the question whether all laws must be 
obeyed. " This kind of question," as Ginsberg says, " as belong- 
ing to the detailed discussion of particular legal systems, is not 
raised by Stammler, and in general, he leaves us rather in the dark 
as to how he conceives actual law to be related to right law." 25 
He cannot free himself entirely from conceptions of natural law 
and the idea of a " higher " law creeps in despite his positivism, 
but since his criterion of justice is purely formal it constitutes no 
substantive limitation. 

Society, for Stammler, is not an entity or a personality but 
a community of wills. 26 Within the community each individual 
seeks his own subjective ends and tends to treat other individuals 
as means. But none of these particular subjective ends can be 
binding simply because it exists. For an end to be binding upon 
all individuals within the community it must be objective ; that 
is, it must be common to all and independent of any particular 
interest peculiar to one individual or group of individuals. Now 
Stammler concludes that " the only thing which can serve as 
an absolutely valid standard for all possible striving is a purely 
formal method of guidance in the shape of an ideal object of 
thought which directs one's judgment." 27 

Hocking explains Stammler's view as follows : 

Each individual must recognize (and to some extent does recognize) 
the fact that his own particular ends are particular, and therefore not 
absolutely valid ; each one conceives a condition in which he would 
be free from the domination of such partial objects, in view of a com- 
pletely legitimate and imperative object which his purified will would 


seek. And if the ideal condition of purity of will (Willensreinheit) 
were reached by. all, then (as we all dimly recognize) the business of 
bringing about social solidarity would likewise be ideally simplified ; 
for there would be no disposition to use any member as a means, 
beyond the point at which he is himself served by the union, so that 
the united willing becomes means to his ends. Such a community 
would be a community of free-willing men. And this ideal of " pure 
community " (reine Gemeinschqft) is the ideal which more or less blindly 
stands over each actual will and constitutes the element of " right " 
which it recognizes in the concrete agencies of social control. 28 

Commenting on this theory, Hocking continues : 

Clearing this notion of Stammler's verbiage, it seems rather an empty 
one so empty indeed as to be perhaps slightly perverse. For what 
else does it amount to than the proposition that the whole valid end 
of a community is the existence of a community ; or, that communities 
have nothing else to work for, in their notions of right, than simply 
to be communities in the perfect sense of that term working out in all 
their arrangements the principle of consent which is involved in any 
free union of wills ? 29 

It is difficult to see how Stammler's conception of a " pure 
community " of will imposes any substantive limitations upon 
individual will. 

There is no such thing as " pure " will ; there is no such thing 
as a will without content or aim. And where there is no common 
affirmation of values there can be no common will. Without a 
community of values the will of the community becomes for all 
practical purposes the will of the strongest individuals within the 
community. It is only possible to conceive of a community will 
where the existence of objective values is recognized and acknow- 
ledged as a limitation upon the individual wills and desires in the 

Stammler provides no objective limitation to individual will 
and interest. He denies that there are any eternal truths and 
values constituting a limitation. The only limitation Stammler 
sees is a purely formal one. The individual can recognize 
no moral responsibility where no objective values exist ; since 
Stammler denies the existence of objective values he denies that 
the individual has any moral responsibility. He provides no sub- 
stantive limitations which might restrain the community of will 
from acting arbitrarily. What Stammler has done in effect is 
to equate right with might. As Hocking says : 

Stammler's guides are simply, as he is fond of calling them, Richtlinien 
or Blickpunkte, for the mind of the reflective law-maker. But there is 


room for scepticism as to whether such Blickpunkte are capable of 
doing actual work, or whether the work that they seem to do in 
Stammler's hands is done by them or by some further criterion un- 
acknowledged or undiscovered, which the condition of Willensreinheit 
(implying a lack of strict logical deduction from criterion to appli- 
cation) allows to enter unobserved. It might seem as though such 
purely formal criteria, instead of being too rigid, as Kohler complains, 
are so empty of content as to permit any filling. 30 

It is just this lack of content that makes it impossible to conceive 
of any obligation, because obligation means that you ought to will 
some things but not others. In order to will you have to will 
something ; in order to will rightly you have to know what you 
ought to will. No formal method can tell you this. When the 
criteria of obligation are emptied of all content, when any content 
can be filled in, there exists no moral obligation, and hence no 
limitation upon will except that imposed by force ! 

Stammler emptied the criteria of obligation of all substantive 
content, but Kclsen went even further. His work, as Kaufmann 
points out, was " the most radical attempt to carry out the pure 
formalism of law on the Neo-Kantian basis." 31 He concerns 
himself solely with the form of law, and, unlike Stammler, is not 
interested in the will behind the law. As Emerson observes : 

Not even the factual source of the content of the norm interests him. 
Law can be produced i.e., logically derived from law ; if the 
norms of law are set by the despot, the absolute monarch, the parlia- 
ment, this means, from Kelsen's stand-point, that there is logically 
supposed a norm authorizing these persons to fix the content of law. 
. . . We are in fact told no more than that, given a legal norm, we 
can find its logical presuppositions. The original norm at which 
Kelsen arrives is not to be traced back to any will ; it is a purely 
formal concept which can be filled with any content ; it is only a 
necessary aid to thought. 32 

In an effort to establish a " pure science of law " he completely 
ignores all political, social, and psychological considerations, 
discarding them as metajuristic. 

Kelsen carries to its ultimate conclusion the endeavour, started 
by Gerber, Laband, and Jellinek, to eliminate all metaphysical 
considerations from legal theory. At the same time he endeav- 
ours to carry on the liberal tradition by making the validity of 
law independent of any personal authority. He endeavours to 
preserve the concept of the Rechtsstaat, but since his theory leads 
to the conclusion that every sfate is a Rechtsstaat he deprives the 
concept of any meaning given it by integral liberalism. 


He distinguishes legal norms from other social norms by the 
coercive force behind the former, and conceives the law as a 
norm prescribing certain human behaviour. As he states it : 

Legal norms are coercive norms. In order to bring about the desired 
behaviour, the norm threatens the person disobeying it with a coercive 
act which he deems as evil. . . . Thus the specific structure of a legal 
norm is revealed as the typical rule of law (Rechts-Gesetz) ; it connects 
two facts ; a certain fact, as the condition, with another fact the 
coercive act as the consequence. The simplest example is the norm 
of criminal law. If some one commits larceny, he shall be punished. 
It is one of the most important contentions of the Pure Theory of 
Law that the whole material of positive law can be rendered in rules 
of this fundamental form. 88 

The " legal order " consists of " a plurality of norms forming one 
system." 34 The unity of this order is found in the fact " that 
all the norms constituting this order have the same ground of 
validity, i.e. 9 they can be traced back to one and the same basic 


What is this basic norm ? He answers : it " is the one which 
determines in what way the norms belonging to the order are to 
be created." 36 He is somewhat vague about the nature of this 
basic norm, upon which concept his whole theory rests, and he 
never actually says exactly what it is. He does say that it 
" cannot be * created ' in the same sense as the norms of the 
legal order whose unity is founded upon it/ 5 that it "is not 
created by the organs of the legal order, but is presupposed by 
legal cognition " and " is, therefore, not a positive but a 
hypothetical norm." 37 

The norms of a particular legal order acquire validity for 
Kelsen as they are derived from this basic norm, but the question 
naturally arises as to the validity of the basic norm itself. How 
is this determined ? Kelsen refuses to answer, dismissing the 
question as irrelevant, as raising considerations that he regards 
as metajuristic. In the final analysis the validity of the basic 
norm is assumed a priori. Lauterpacht, commenting on Kelsen's 
theory, says : 

The norm which lies at the basis of his system, although not arbitrary, 
is purely relativist and hypothetical. There is in it no such absolute 
element which it would necessarily contain if it were grounded in 
a material ethical value, for instance, in that of justice. The initial 
hypothesis is an act of human intelligence. It is not a dictate of 
a higher power. It is not a deduction from an immutable principle 
of justice ; it is an assumed hypothesis glorying in its realistic relativism. 


Kelsen claims for his initial hypothesis that it transforms might into 
law. However, this claim is in itself morally indifferent. Frequently 
such transformation will prove ethically repugnant. The funda- 
mental norm is a methodological instrument pure and simple. It 
certainly substantiates Kant's dictum of " the method creating its 
objects." 38 

The content of law, according to Kelsen' s theory, is filled in by 
human will and there are no substantive limitations to bind the 
will or direct its action. The only limitation imposed is pro- 
cedural and formal. Responsible freedom as understood by 
integral liberalism is thus destroyed. Kelsen himself acknowledges 
this when he says : 

Any content whatsoever can be legal ; there is no human behaviour which could 
not function as the content of a legal norm. A norm becomes a legal norm 
only because it has been constituted in a particular fashion, born of 
a definite procedure and a definite rule. Law is valid only as positive 
law, that is, statute (constituted) law. 39 

The content may be just or unjust, good or bad ; it may be 
supplied by a parliament or a despot ; so far as the " Pure Theory 
of Law " is concerned procedure alone determines the validity 
of law. 

The state is identified by Kelsen with the legal order and hence 
all its acts are legal. It cannot act illegally. As stated by 
Kelsen : 

The Pure Theory of Law views the State as a system of human be- 
haviour, an order of social compulsion. This compulsive order is not 
different from the legal order for the reason that within one com- 
munity only one and not two compulsive orders can be valid at the 
same time. Every expression of the life of a State, every act of State, 
is a legal act.* (} 

Since he views the state essentially as a system of norms he tends 
to ignore or minimize the human agencies and organs through 
the medium of which the will of the state is made manifest. " A 
human act," he contends, u is only designated an act of State 
by virtue of a legal norm which qualifies it as such." 41 He 
tends to assume that the will of the state is somehow predetermined, 
somehow embodied in the legal order itself. As Emerson explains 
Kelsen's view : 

The physical or psychical acts of the State's organs are juristically 
irrelevant : they are only material for attribution. The will of the 
State is, then, only a juristically constructed attribution point. In 
consequence the person of the State, like all other legal personality, 


is merely the personification of legal norms . . . the State, as wholly 
a legal construction, has no other content than that given it by law 
and no acts can be attributed to it which are not foreseen by law. 42 

According to Kelsen : 

Wherever anyone alleges that he acts for the State, he must be able to 
fall back upon a legal prescription which allows this act to appear as 
willed by the State, and, therefore, attributable to the State. An 
act of a State organ not founded on a legal prescription or statute is 
unthinkable in the modern Rechtsstaat.** 

The Rechtsstaat as conceived by integral liberalism is founded 
upon justice, the Rechtsstaat as conceived by Kelsen is indifferent 
to justice. By definition, moreover, every state, according to 
Kelsen's formula, is a Rechtsstaat, since every state is identical with 
a particular legal order. 

Although Kelsen gives little or no attention to the will behind 
the law he does accept positive law as the only law. By so doing 
he tacitly recognizes individual will as the sole source of the 
content of law. Moreover, since he believes that it is the form, 
rather than the content, of law which makes it binding he removes 
any substantive limitation to individual will. By recognizing 
procedure alone as a limitation, by denying that the basic norm 
itself must have any specific content, he actually fosters individual 

The only thing which constitutes a limitation is a sense of 
obligation on the part of the individual to follow a certain 
procedure in enacting law. But this sense of obligation is not 
grounded in conscience, for conscience demands the recognition 
of transcendent truth, and Kelsen discards this notion. Since he 
does discard it he has real difficulty in explaining why the individual 
ought to observe legal rules, why a certain procedure should be 
followed, why one norm should be derived from another. He has 
destroyed all criteria for obligation. 

Without acknowledging it, he does resort in the final analysis, 
through the notion of a basic norm, to natural-law concepts. He 
assumes that obligation is self-evident, that it is " natural." But 
since his positivism prevents him from appealing to ethical values 
he does not make out a very good case for the self-evidence of 
obligation. He merely states that the validity of a basic norm 
must be assumed as self-evident and lets it go at that. He does 
not appeal to the substance of the basic norm as the source of 
obligation and fails thereby to provide an objective basis for the 
sense of obligation which he presupposes. Without some belief 


in absolute and eternal truths and values transcending individuals 
the objective basis for obligation is removed and obligation 
becomes far from self-evident. 

If the Neo-Kantians emphasized norms to the exclusion of 
wills, standards to the exclusion of facts, the Neo-Hegelians 
emphasized wills rather than norms, and facts rather than 
standards. By accepting this separation, made inevitable by 
positivism, both succeeded in placing law beyond good and 
evil, for neither could succeed in deriving from norms alone or 
from facts alone a legitimate and workable notion of obligation. 
Obligation must rest upon conscience, that is, upon a common 
recognition of truth and value transcending individuals, or there 
is no obligation in a moral sense. By denying the existence of 
transcendental norms filled with substantive content, both schools 
were forced to distinguish law by the coercion behind it. Force 
alone could bring law into existence, or, at least, could guarantee 
its existence. 

One of the founders of the Neo-Hegelian school of jurists was 
Adolf Lasson. He espouses freedom under the law, and in this 
lies his claim to being a liberal, but his conceptions of freedom 
and of law are very different from those held by integral liberalism. 
Whereas Neo-Kantianism endeavoured to " purify " the science 
of law from all social, political, and psychological elements, 
Neo-Hegelianism took cognizance of the fact that " the philosophy 
of law cannot possibly escape involving itself in the contentious 
social and political questions." 44 

Lasson identifies law with the will of the state. He says that 
the state is a Rechtsstaat, but means by this simply " that whatever 
the State does it necessarily does in the form of law," 46 Like 
Kelsen he is driven to the conclusion that every state is a Rechts- 
staat. As he wrote : 

The State can will nothing other than the law, i.e. 9 than its own will. 
Any desired content which the State wills becomes immediately, because the 
State wills it, a legal command, and the State can will nothing other 
than in the form of a legal command. 46 

This sounds very much like Kelsen when he says that " every 
act of State is a legal act." In fact, Kelsen and Lasson reach 
similar conclusions though for different reasons. 

Kelsen reached this conclusion because he conceived of the 


state as identical with the legal order, as the personification of the 
unity of a legal system. Lasson reached this conclusion because 
he conceived of the state as the supreme power within society, 
as the final arbiter between conflicting norms. Law for Lasson 
consists of all rules which are effective within society. The state, 
as the sole agency capable of coercing individuals because of its 
superior force, finally declares what is law by enforcing obedience 
to certain rules in the event of conflict between them. 

Freedom for Lasson means freedom from all compulsion that 
is not legal. But, since he exalts the state to the role of supreme 
arbiter and contends that all action on the part of the state is 
legal, his conception of freedom is quite different from that held by 
integral liberalism. Freedom might actually become slavery. 
The individual, moreover, counts for little, his interests may be 
sacrificed to those of the state whenever the latter wills it so. For 
Lasson declares : 

The State is the highest and last of all natural things, as the law which 
is the content of its will is the highest and last of all natural systems. 
The empirical individual is for the activity of the State nothing but 
an object serving the State's ends . . . the natural individual with 
his interests is sacrificed for the State as soon as it is necessary. 47 

There are no human rights that set limits to the will of the state. 
A somewhat less extreme position, but one which is similar, 
is taken by Josef Kohler. He conceives of law as being relative 
to particular cultures, as being at the same time a product and 
instrument of a culture. He rebels against the static formulas 
of the Neo-Kantians and emphasizes the changing needs of a 
dynamic society. He conceives of culture (Kultur) as " the 
greatest possible development of human knowledge and the 
greatest possible development of human control over nature." 48 
Law can only be understood as part of a cultural pattern. For 
that reason he said : 

Law must be different in every different Culture, in order to realize 
its own object. . . . There can be, therefore, no such thing as an 
eternal law, nor is it admissible to prophesy what shape law will take 
hundreds of years hence. 49 

Law is relative to time and place but all law, at all times and 
in all places, strives to attain one goal, namely, the " greatest 
possible development of human control over nature." The con- 
tent of law continually changes but the goal remains the same. 
Kohler contends that this goal may not be achieved by the 


activities of individuals alone and that the final agency to carry 
out the cultural ends of a particular time and place is the state. 
The essential purpose of the state is to promote culture and if 
force is necessary to do so then force is justified. The promotion 
of culture demands the initiative of political rulers conscious of 
the destiny of the nation. 50 

The distinctive thing about law is the coercion behind it. 
" Law," Kohler writes, " is the standard of conduct which, in 
consequence of the inner impulse which urges men toward a 
reasonable form of life, emanates from the whole, and is forced 
upon the individual. It is distinguished from morals, customs, 
and religion as soon as the point is reached at which compulsory 
standards are separated from those demands that involve merely 
social amenity." 51 The individual is subordinate to the culture, 
and, if necessary, must sacrifice his rights and interests in favour 
of the requirements of the cultural community in which he lives. 
" The demands of culture," he writes, " often require the downfall 
of existing rights." 52 

This view is completely at variance with that held by integral 
liberalism. For liberalism the rights of individuals, as moral 
entities, are absolute and eternal. The state exists to preserve 
them. Though Kohler speaks of the state as a Rechtsstaat, he 
thinks that the state may destroy individual rights whenever it 
deems it necessary. He clings to the vocabulary of liberalism 
but gives the liberal concepts meaning which integral liberalism 
would repudiate. 

Liberalism, in its integral form, placed the individual at the 
centre of its thought the preservation of the dignity of human 
personality was the essential function of the state and of society. 
Kohler bows down before inevitable " progress," a progress 
which may require the annihilation of human dignity and rights. 
For, as he observes : 

It must be taken into consideration (in the errors of trial by divine 
judgment) that the sacrifice of the individual secured the peace of 
society. . . . Universal history often requires the individual to be 
thus sacrificed : the iron tread of progress tramples thousands under- 
foot. This is a terrible phenomenon which we must moderate and 
ameliorate as far as possible. . . . But here we must simply accept 
the ways of Divine Providence, in the consciousness that thus the 
progress of the world is accomplished. 63 

Ideas of right change with different cultures and at different 
times. The most one can do, according to Kohler, is to discover 


the ideal of a particular cultural epoch and from this forecast the 
immediate, but not too far distant, future. This ideal must guide 
the legislator and judge. More one cannot do. If one attempts 
to set up some absolute and eternal standard, such as human 
rights, one views things in a false perspective and ignores the fact 
that ideas of right change with changing cultural conditions. 

Nothing can be declared to be eternally and absolutely right 
or wrong. Human rights are as relative to time and place as 
other things. Kohler writes : 

No one who looks at the matter entirely from the standpoint of ... 
human rights will t>e able to appreciate slavery in its historical develop- 
ment. Human rights are not advantageous to every development : 
technical arts must advance, humanity must make progress in indus- 
trial life, and for centuries this goes on with the sacrifice of human 
life. The sacrifice to culture is the highest sacrifice that the individual 
can make ; but it is also one that he must make. 54 

The standard which Kohler would supply is vague for practical 
purposes. He admits this himself when he says : 

The culture of an age is connected with the soul and spirit of a people. 
To fathom them is the task of folk-psychology, which, it must be 
admitted, still needs to be greatly developed. . . . Moods follow one 
another owing to psychic necessity, and owing to laws that are yet 
partly unknown. 55 

As Hocking says, " one must be something of a seer to catch the 
pulse of Culture " 56 and, perhaps, only a Hitler, impressed with 
his own messianic mission, can actually feel the pulse of a national 
culture. For the ordinary legislator or judge, unimpressed with 
his powers as a prophet, the standard supplied by Kohler would 
prove impracticable as a guide. As Hocking aptly puts it, " the 
relation of the law-maker to Culture remains . . . that of a mystic 
to his deity," and, in the final analysis, " Kohler then, as well 
as Stammler, falls back upon intuitive judgment and upon the 
intuitive judgment of specially qualified minds." 67 Just as 
Stammler's theory fostered irresponsibility on the part of the 
individual, so Kohler's theory fosters irresponsibility on the part 
of the state. 

Kohler was somewhat more temperate than other Neo- 
Hegelians, but he did identify law with the command of the 
state and deny all normative limitation upon will. Other Neo- 
Hegelians, notably Lasson, Berolzheimer, Kaufmann, and Carl 
Schmitt, tended to substitute power for culture. Since Kohler 


himself thought of culture as control, or power, over nature, it 
was but a short step to substitute power for culture. 

Lasson's views have been briefly mentioned above. In 
Berolzheimer the tendency to identify power and culture (Kraft 
and Kultur] is clearly manifested. He agrees with Kohler in 
thinking that the end of culture is to provide men with greater 
power over nature. This power, as it grows, is conserved by 
the state and is, indeed, made possible only by the existence of 
the state. As Emerson says, this view led him to the conclusion 
" that the source of objective law is c always a factual condition 
of power-rulership or some other manifestation of power/ " 68 
Conscious of class conflict within the modern state, Berolzheimer 
thought of law as having its content determined by class interests ; 
he thought of it as the resultant of economic forces, in the final 
analysis as the resultant and embodiment of might. 69 

For Kaufmann, too, the state was the embodiment of power, 
the agency responsible for carrying out the cultural aims of a 
particular time and place. The state, he says, is " the organiza- 
tion which a people gives itself, in order to thread itself into world 
history and to assert its peculiar genius in it." * Indeed, as he 
put it more explicitly, " the essence of the State is the develop- 
ment of power, is the will to assert itself and make itself effective 
in world history." 61 The ideal towards which all human striving 
is directed is not a community of free men, as integral liberalism 
believed, but the victorious war. 62 For, Kaufmann believed, it 
is in war that a people expresses its peculiar genius at its best. 
The people who have the best Kultur, who have the greatest power, 
will win, and, as a consequence, war is the ultimate standard of 
" right." This simply means that he believes that might makes 

The degeneracy of his " liberalism," made manifest in his 
writings long before 1933, was confirmed at the advent of Hitler's 
regime. Though himself a Jew he saluted the advent of the Nazis 
by saying that he had the deepest confidence in Adolf Hitler and 
the ethical content of his movement. Though before 1933 he 
had called himself a liberal, and actually fought for liberal 
reforms, he could say this with sincere conviction. As the brief 
description of his ideas shows, though a " liberal " in name, his 
ideas were more congenial to National Socialism than to integral 
liberalism. His case is typical of many " liberals " of the era 
just following World War I, and it illustrates the degeneracy to 
which liberalism had sunk in pre-Nazi Germany. It was possible 


for these liberals to accept Hitler, and even to acclaim him, 
because their concepts were congenial to National Socialism. 


Similarly, Carl Schmitt, who for a time was the " Crown 
jurist " of Nazism, expounded long before 1933 ideas that dis- 
played more kinship with National Socialism than they did with 
integral liberalism. In Der Begriff des Politischen, published in 
1927 when the Weimar Republic was at its height, he espoused 
the view that the end of all political activity is the acquisition 
of power for its own sake. 63 The essential function of the state 
is to differentiate between friend and enemy. By enemy he 
means simply a group struggling for its existence and opposed to 
another such group. 

As Kolnai describes Schmitt's views : 

Politics as a struggle between rival centres of power is more vital for 
the State than its administrative tasks and functions . . . enmity . . . 
is the distinctive feature of political existence of any existence worthy 
of its name. . . . Just as the spheres of morality, aesthetics and 
utility circle around the polarities of Good and Evil, Beautiful and 
Ugly, Useful and Detrimental respectively so the sphere of politics 
has as its characteristic the contrast between " Friend and Foe ". . . . 
Political conflicts . . . are neither collisions of interests nor antagon- 
isms of a " spiritual " (religious, moral, etc.) order. Since they have 
no bearing either on material claims or on " normative " issues of 
right and wrong, they cannot be relevantly settled either by barter or by 
discussion and persuasion. Their natural solution is provided by war** 

When Schmitt discusses the nature of constitutions he gives 
expression to this view again. The constitution of a state, he 
says, is not a legal norm but a conscious existentielle decision of 
the constituting power which determines the form and type of 
political unity desired. 65 It is immaterial what form this political 
unity takes or what motive prompts the decision. Whoever is 
capable of making this decision, moreover, is the constituting 
power. A constitution, Schmitt declares, does not give rise to 
itself but is willed into existence, and it is the force behind the 
will, not its normative lightness, that gives the constitution 
validity. As Schmitt puts it : " Every existing political unity 
has its value and its authorization (Existenzberechtigung) not in 
its Tightness nor in the efficacy of its norms but simply in the fact 
that it exists." 66 This leads him to say finally that " das Beste 
in der Welt ist eiix Befehl." 67 The state, as the possessor of the 
greatest coercive power in society, as the agency capable of 


giving the final command, becomes completely irresponsible, 
ready to turn the control of its organs over to the group with the 
greatest power for ends which it selects. 


Thus, both Neo-Kantianism and Neo-Hegelianism led to 
irresponsibility the one, to irresponsibility on the part of the 
individual ; the other, to irresponsibility on the part of the state. 
One placed procedural restrictions upon individual will but left 
it otherwise free to do what it liked ; the other subordinated 
individual will to the state and left the state free to pursue power 
for its own sake with no restriction upon the manner of acquiring 
power or the purpose to which this power might be put. One 
conceived of law as an empty form ready to be filled in with any 
desired content ; the other conceived of law as the product and 
embodiment of power. Both, in somewhat different fashion, 
identified the state with the legal order and saw the coercive 
power behind the law as its distinguishing characteristic. 
Although some of the jurists endeavoured to retain some connec- 
tion between law and right, the identification remained one of 
vocabulary only, for they tended, in the final analysis, to identify 
right cither with abstract formulas emptied of all content or 
with might. 

As has been shown earlier, integral liberalism was conscious 
of the absolute value of human personality ; above all it was 
imbued with the belief that each individual possesses a moral 
worth equal to that of every other individual. Such a belief is 
discarded by the jurists just considered. The Neo-Kantians are 
interested solely in the formal equality of individuals ; the Neo- 
Hcgclians are ready to sacrifice the individual, reluctantly in 
the case of Kohler, willingly in the case of Schmitt, in the interest 
of power. 

For neither school does the individual possess inviolable 
rights as a human being ; for neither is there a sphere of individual 
liberty which cannot be taken away. The Neo-Kantians would 
demand only that such deprivation of individual liberty be under- 
taken in accordance with a prescribed procedure (any prescribed 
procedure) ; the Neo-Hegelians would demand only that it be 
done for purposes of acquiring greater power for the state. 

Integral liberalism espouses freedom and equality for the 
individual under a law that is filled with substantive and unchang- 
ing content. For both the Neo-Kantians and the Neo-Hegelians 


equality before the law means simply that law, whatever its 
content, be applied alike to every individual. A Rechtsstaat for 
them is not a state founded upon justice to all and each, as 
conceived by integral liberalism, but simply a state that issues 
its commands in legal form. Both schools of jurists reject the 
notion that there are transcendental standards filled with sub- 
stantive content which bind the will of individuals and of the 
state. Liberal concepts, like that of the Rechtsstaat and of freedom, 
are distorted by both schools and given a meaning diametrically 
opposed to that ascribed to them by integral liberalism. They 
pay lip service to liberalism but rob it of all the meaning it 
originally had.' Their " liberalism " is more congenial to 
despotism than to freedom. 


Ohne politische Wertgemeinschaft gibt es weder tine 
politische Willensgemeinschaft nock Rechtsgemeinschaft. 
In der Auflosung dieser Wertgemeinschaft liegen die 
tiefsten Wur&ln der politischen Krise Europas. 



How was it possible for prominent intellectuals, jurists, lawyers, 
professors, and civil servants, who before 1933 were professed 
liberals, to accept, and many of them to acclaim, a despotism 
that repudiates in word and deed the fundamental postulates of 
liberalism ? It was possible because the " liberalism " they 
espoused was more closely akin to the nihilistic despotism of the 
National Socialists than to the doctrine whose concepts they 
repeated but whose substance they repudiated. They were com- 
pelled by their own logic to accept the tyranny that was forged 
in the crucible of intellectual and political anarchy. They had 
passed beyond the realm of good and evil into a realm of mean- 
ingless existence. Reason itself, as a consequence, was denied 
the function either of understanding the world or of ordering 
it. Tyranny alone could restore a semblance of order and 

And these professed liberals had neither the standards nor 
the will to declare this despotism wrong. They could accept it 
only as a fact a positive fact. The will to resist was lost 
destroyed by themselves. There was, as a matter of fact, no 
armed resistance, no great liberal uprising against the Nazis, 
because the " liberals " saw nothing to fight about. They had 
no ideas, no values, for which to fight ; they had no doctrine, 
no way of life, to defend. 

Having denied conscience a valid role in the scheme of things, 
having denied the possibility of submitting opinions to a forum 
of reason and conscience, these professed liberals had no alterna- 
tive but to accept the arena of force as the final arbiter of" right " 
and "justice. 55 Having placed the law beyond good and evil, 
German " liberal " jurists lost by that act the capacity for con- 
demnation. The appeal could only be made, as they themselves 
had taught, to superior force. The degeneracy of liberalism 



was made manifest in this loss of faith in the existence of objective 
truth and value. 

Without that faith, liberalism was but an empty husk an 
empty facade. The forms of liberalism could easily be perverted, 
as they were, to purposes destructive of everything liberalism 
originally valued. Liberalism was not destroyed by the Nazis 
rather, the Nazis were legitimate heirs of a system that com- 
mitted suicide. Had liberalism not destroyed itself, the Nazis 
could never have come to power. The framework of liberalism, 
without the spirit of liberalism, was an ideal framework for the 
institution of National Socialism. A brief recapitulation may 
serve to clarify -'this thesis. 


Merged by the force of historical accident into one doctrine, 
there are latent in liberalism as originally conceived two self- 
sufficient and logically independent theoretical systems. 1 When 
integrally conceived, liberalism postulates as its fundamental 
premise the absolute value of human personality. Conceiving 
as the essence of human individuality a God-given soul it espouses 
individual equality, in a spiritual sense. Each individual is 
regarded as potentially worthy of salvation, in the sense of fulfilling 
his destiny or function in the light of his talents and capacity. 
Hence, individuals are never means but always, as equal moral 
entities, ends in themselves. 

Accordingly, liberalism champions individual autonomy, that 
is, freedom from all arbitrary compulsion, since compulsion is 
incompatible with the conception of human dignity. For only 
by the freeing of the individual from arbitrary restraints can he 
develop his talents and express his personality in the realization 
of all his potentialities. The individual is not conceived as being 
free to do anything he pleases or desires ; he is free only to follow 
the dictates of reason and conscience. 

As its ideal, therefore, liberalism posits freedom under the 
impersonal rule of law, the law being conceived as filled with 
certain eternal, objective truths and values discoverable by reason. 
The existence of objective truth and value, of transcendental 
standards, is presupposed (the seventeenth-century Christian mind 
could not do otherwise). 

Liberalism, on the other hand, conceived of society as being 
composed of atomic, autonomous individuals with wills and 
1 For notes to Chapter VI, see pp. 132-4. 


interests peculiar to themselves. (This view was fostered by the 
rediscovery of man's ego by the Renaissance and by the concepts 
of modern science.) There is ascribed to the individual the 
capacity to will freely. But how is it certain that the individual 
will not will that which is personally desirable rather than that 
which is objectively demanded ? There is no certainty. Only 
a conscientious sense of duty bids the individual to follow the 
dictates of reason rather than those of personal interest. For 
liberalism acknowledges no limitation upon individual will except that 
imposed by conscience. Order, then, is potentially embodied in the 
existence of objective truth discoverable by reason ; but, in the 
final analysis, it is conscience alone that bids the individual to 
reason objectively, to discover the content of true law, to translate 
potential order into actuality. Conscience, however, is not a 
subjective feeling of preference, not an instinctive intuition, but 
rather is a common knowledge, or recognition, of values transcend- 
ing individuals. The true law, accordingly, to which individuals 
owe obedience, the law under which freedom is assured, is that 
law whose content is found in human conscience. It is in 
obedience to that law that the individual finds his real freedom 
and secures the dignity of his existence as a human being. 

Two logically independent notions of law, then, are latent in 
liberalism. First of all, there is the notion that law is the product 
of individual wills, of consent, and the expression of subjective 
interests. On the other hand, there is the notion that law is the 
embodiment of certain objective truths and values, in a sense 
found and not made. In the first view, it is the irrational com- 
pulsion behind the law which makes the individual submit to it ; 
in the second view, it is the rational recognition of objective truth 
that imposes obligation. The legal order is justified, in the first 
instance, because it is the collective expression of individual wills 
and interests ; it is justified, in the second instance, because of the 
inherent justness of the content which it embodies, independent of 
individual will or interest. The validity of law, in the one con- 
cept, rests upon the force behind it ; in the other, upon the 
recognition of the inherent Tightness of the content of law. The 
source of law is thought of, in the one concept, as individual 
wills ; in the other, as reason, nature, or the " order of things/' 
The validity of law, in the first instance, rests simply on the fact 
that the competent authority, possessed of superior coercive 


power, has prescribed it. In the second case the validity of law 
rests upon its content, upon its inherent rightness or justice. The 
bases of validity, therefore, are, in the one case, formal, and, in 
the other case, substantive. 

Since the freedom that liberalism espouses is freedom under 
the law, the conception of law that liberals accept has significant 
implications for the development of liberalism. Now so long as, 
and to the extent that, liberals retained the substantive, as well 
as theformal, conception of law (that is, so long as liberals believed 
that law should embody certain substantive truths and values 
transcending individual will and interest), liberalism retained its 
integral character. When, however, the formal conception of 
law alone was retained, liberalism became decadent, preparing 
the way for its own demise. For the sloughing off of objective 
values and truths left only the subjective and anarchical elements 
of liberal thought ; will was left without any substantial 
limitation. The way was now prepared for the arbitrary sub- 
jection of one individual to the will of another which meant the 
destruction of the dignity and freedom of human personality. 


In Germany the formal idea of law rose to an ascendant 
position in the latter part of the nineteenth century, finding 
notable expression in the writings of jurists like Gerber, Laband, 
and Jellinek. Their formalism was carried to its logical extreme 
at the turn of the century by the Neo-Kantians, and particularly 
by Kelsen. But if the Neo-Kantians emphasized norms to the 
exclusion of wills, the Neo-Hegelians emphasized wills to the 
exclusion of norms, contenting themselves with a normless 
" factualism," And since no valid obligation can be deduced 
from either the realm of Sollen, or the realm of Sein, when each 
is focused separately to the exclusion of the other, the Neo- 
Kantians actually fostered irresponsibility on the part of the 
individual and the Neo-Hegelians irresponsibility on the part of 
the state conceived as a real person. Both schools of thought 
represent liberalism in decadence, 2 

Of the factors which contributed to the decline of liberalism 
in German politico-legal thought, the most important was the 
gradual infiltration of positivism into all realms of thought and 
the consequent rise to ascendancy of the subjective elements of 
liberal thought over the objective elements. If it is possible to 
formulate any " law " of development peculiar to liberalism, at 


least as it applies to German politico-legal thought, then that 
" law " is that the decline of liberalism parallels the degree to 
which liberal thinkers have accepted positivism an acceptance, 
moreover, that appears, in retrospect at least, to have been 

Positivism, as a perspective growing out of science, denies, 
at least in its extreme form, the existence of values as scientifically 
relevant facts. In an endeavour to observe and describe " pure " 
facts, that is, things experienced by ordinary sense perception, 
positivism tends to regard all value judgments as expressions 
simply of subjective individual preference or feeling. The positi- 
vist denies the existence of objective values because he feels that 
he cannot empirically demonstrate their existence. He believes 
that it is possible to observe and describe facts of experience, 
without recourse to value judgments, and contents himself with 
the " pure " description of these " facts." Relying heavily upon 
quantitative methods of thinking, and upon " exact " measure- 
ment, his inability to measure values quantitatively lends, he 
believes, further validity to his argument for rejecting them as facts. 

Now during the nineteenth century, particularly in Germany, 
science, by stimulating inventions and improving the methods of 
production, added greatly to the material prosperity, comfort, 
and security of large numbers of people. To many the practical 
applications of scientific discovery seemed to herald the dawn of 
the millennium. The nineteenth century was, as Ortega y Gasset 
points out, an age of plenitude and self-satisfaction. 3 Where 
formerly, as Tillich says, men looked to God and religion for 
salvation they now looked to technicism and science. 4 The 
promise of an earthly Utopia was substituted for the promise of 
eternal spiritual salvation as an aspiration worthy of men's efforts. 
The method had been found ; paradise on earth waited only 
upon the proper execution of the plan to be discovered in the 
truths and methods of science. Science had become enthroned 
as the final arbiter of truth and value, occupying a position similar 
to that of the Church in the Middle Ages. Men now turned to 
science for understanding and salvation, as in the Middle Ages 
men turned to theology and to the Church. Technical efficiency 
and mechanical certainty became the ideals of the nineteenth 
century. They were the ideals not only of the scientist but also 
of the dominant, satiated, bourgeoisie whose primary desires, 
unlike those of their seventeenth-century progenitors, were for 
certainty, security, and stability. 


By the end of the nineteenth century, and especially in 
Germany, science had achieved a prestige never accorded it 
before. Few, if any, could resist the dominant intellectual 
current of the age. And it is not strange, but rather, on the 
contrary, inevitable that students of social phenomena should 
have turned with eagerness to the methods that seemed to yield 
predictability, certainty, and security. Hoping to achieve for 
the study of human phenomena the same calculable certainty 
that seemed to characterize the natural sciences, students of social 
phenomena accepted the perspective of positivism and empiricism. 
It is inconceivable that they should have failed to do so. 

Now when '"integral-liberal concepts are examined in this 
perspective they undergo radical changes in meaning. The 
potential, rational order of integral liberalism filled with truths 
and values transcending individuals is replaced by the conception 
of an immanent order obeying mechanical principles. This 
conception of a " natural " order is more congenial to the 
nineteenth-century mind, moreover, since it ministers to the 
complacent belief in mechanically inevitable progress. It requires, 
indeed, no actualization by individual wills since it is an im- 
manent order already realized and in operation. Individual 
responsibility tends to disappear and, in any case, is assigned a 
minor role. It is no longer a question of choosing the right 
way but of obeying that which is compelled. 

When law is viewed from the standpoint of positivism, " true " 
law appears to be not that which is secured transcendentally but 
rather, simply and purely, a product of the strongest will within 
the community, whether the will be that of the numerical majority 
or the numerical minority. Positive law appears to be the only 
" real " law, since it is the only law that can be empirically 
experienced. It cannot be a product of reason but only a pro- 
duct of will. It cannot embody truths and values transcending 
individuals but only desires and interests peculiar to particular 
individuals living at a certain time in a certain place. The task 
of the jurist is no longer a creative but simply an analytical one. 
The reason individuals submit to law cannot be the inherent 
justice of the law (since justice is a metaphysical concept) but 
simply the compulsion behind the law. By logical implication, 
if not explicitly, the formal liberal jurists of the late nineteenth 
century came close to saying that law is the command of superior 
force. 6 And by so saying they anticipated the brutal nihilism 
of National Socialism. 


When the rights of man were focused with the perspective of 
positivism they no longer appeared as natural rights but as legal 
rights. When the formal liberal jurist spoke of individual rights 
he meant something quite different from the integral liberal. 
For man he substituted citizen, for the individual as a total 
personality engaged in manifold activities he substituted the 
individual as a political unit. By this device it was possible to 
talk of political freedom and political equality without considering 
the problem of economic freedom and economic equality. For 
substantive truths were substituted formal procedures. And by 
that very device the freedom and equality championed by the 
formal liberals became a formal freedom and a formal equality. 

With the infiltration of positivism into German politico-legal 
thought the idea of a Recklsstaat as a state limited by considerations 
of justice and rights peculiar to individuals by virtue of their 
humanity degenerates into the notion of a state limited by formal 
procedures. As Hermann Heller says, " A Rechtsstaat now is 
every state in which the action of the government is limited by 
some laws. . . . Freedom means bourgeois-economic security 
from such state intervention in the freedom and property of 
citizens to which the representatives of the people have not con- 
sented. Equality is no longer concrete opposition to injustice 
and arbitrariness, i.e., qualitative justice, but quantitative logical 
universality. Recht aber immer und alles, was die Staatsgewalt von 
sich gibt" G Equality before the law comes to mean equal 
application of the law irrespective of the just or unjust content 
of the law. But such a conception is obviously quite different 
from the integral liberal concept that envisioned, as its ideal at 
least, the securing equally to each man his rights. For the integral 
liberal there existed a sphere of individual rights into which the 
state might not penetrate and for the preservation of which the 
state existed. The dividing line between individual and state 
activity was fixed sharply by substantive limitations to state 
activity. These substantive limitations disappear in the writings 
of the formal liberals and are replaced by purely formal limitations 
which, in effect, are no limitations at all. 


The full effect of positivistic thinking is seen in the twentieth 
century though anticipated in the latter half of the nineteenth. 
In twentieth-century German jurisprudence it is made manifest 
in the complete separation of fact and standard and in the 


emphasis of one of these to the exclusion of the other. But, since 
a principle of obligation cannot be derived from either considered 
alone, both schools of thought foster a complete irresponsibility 
that leads to anarchy. An emphasis upon normative standards 
that ignores social realities leads to empty abstractions, while an 
emphasis upon social facts to the exclusion of all normative con- 
siderations leads to an equally meaningless perspective. And this 
emptying of all meaning by the positivists extended, as Hermann 
Heller points out, not alone to the sphere of jurisprudence but to 
all culture c< all life appeared as a functionless and valueless 
sociological problem." 7 

The effects' of the positivistic perspective are as evident 
in the realms of economics, religion, and art as they are in 
jurisprudence. The separation of fact from standard in juris- 
prudence was not an isolated phenomenon but rather part of a 
general phenomenon that was profound and far-reaching. The 
twentieth-century tendency to separate rigidly the realm of" what 
is " from the realm of" what ought to be " that has already been 
described in jurisprudence is found in other realms as well. 

Kelsen's efforts to create a " pure " theory of law find parallel 
efforts among certain economists to create a " pure " science of 
economics. In their attempts to reduce the study of economics 
to mathematical formulas divorced from all institutional con- 
siderations we find the same effort to create a normative science 
of " what ought to be " divorced from all considerations of any 
particular social reality. On the other hand, just as Kelsen's 
extreme formalism is countered by the rebellion of the Neo- 
Hegelians so the institutional economists have challenged with 
their normless factualism the abstractions of the mathematical 
economists. By denying the existence of normative standards 
the institutional economists must content themselves with in- 
different description, having lost the capacity and method for 
evaluation. On the other hand, the mathematical economists 
escape to a world of formulas that bears little or no resemblance 
to the world of economic reality. Both schools of thought, albeit 
for different reasons, foster irresponsibility. Neither has the 
ability to say which course of action, in the real world, is better. 

In the field of painting similar phenomena are made most 
manifest in Expressionism, on the one hand, and Cubism, on the 
other. The tumultuous emotionalism of Expressionism sought 
to depict the " real facts " of life in their naked " reality " with 
no regard for formal principles of expression. Form was deliber- 


ately distorted as colour became the essential element of a 
painting. Just as the Neo-Hegelian jurists refused to be bound 
by normative considerations so the Expressionists rejected formal 
principles of artistic expression as outmoded encumbrances. 
Subjectivism run wild is characteristic of both, and unrestrained 
emotionalism bordering on the psychotic presages in both the 
beginning of an era of nihilism. For the Cubists, on the other 
hand, subject-matter was unimportant. It was not what one 
painted, but how one painted that mattered, just as in Neo- 
Kantian jurisprudence it was not what was enacted that was 
significant but how the law came into being. For both, formal 
procedures were more important than factual content. Picasso's 
belief that " pure " form could be described in geometric terms 
is shared by the Neo-Kantians and the mathematical economists. 
And, like these two, Cubism is of necessity highly abstract, 
intellectual, analytical, and unemotional. If Expressionism 
robbed life, as it experienced it, of all objective meaning, then 
Cubism fostered a conception of life as an empty abstraction. 
Both succeeded in creating an art that, in the final analysis, was 

In music these extreme positions are represented by Schonberg 
and Stravinsky. In the atonal music of the former all " mean- 
ing " is obliterated in an attempt to compose entirely in terms 
of formal, mathematical principles. The purely cerebral, un- 
emotional, and rigid character of his music suggests a kinship 
to the formalism of the Neo-Kantians, the mathematical econo- 
mists, and the Cubists. On the other hand, the combination 
of tonalities at one time, the absence of a regular rhythm, the 
deliberate attempt to avoid formal arrangement that characterize 
the music of Stravinsky suggest a kinship to the same perspective 
that produced the Neo-Hegelians in jurisprudence and the 
Expressionists in the realm of painting. 

The infiltration of positivism into the sphere of religion had 
the effect of forcing liberal theologians into the extreme positions 
of either world-affirmation or world-denial, into the position of 
linking inseparably the gospel of salvation with science and 
industrialism or of retreating to an abstract, religious formalism. 8 
One sought to find salvation by serving man rather than by 
worshipping God, whereas the other sought to find salvation by 
ignoring man and worshipping God in a purely formal way. 
The attitude of world-affirmation is best represented by the 
so-called Humanists, while the attitude of world-denial finds its 


best expression in the writings of Karl Barth. One attitude, by 
the optimistic identification of evil with ignorance, removes all 
transcendental barriers to the exercise of individual will, while 
the other, by regarding man as an essentially sinful creature 
incapable of improving the world as it is, leaves the individual 
in the real world with no practical standards or hope for exercising 
his will in a good and constructive way. Horton summarizes 
the difficulty well when he says : 

Barthianism seems as wide of the mark on one side as humanism is on 
the other ; it is an unstable combination of a crude realism with 
respect to man an4 a wistful idealism with respect to ultimate reality, 
just as humanism is an unstable combination of a crude realism with 
respect to ultimate reality and a wistful idealism with respect to man. 9 

The separation of form from content, standards from facts, 
principles from " reality," and the concomitant endeavour to 
emphasize one aspect of reality to the exclusion of the other, in 
an effort either to formulate a " pure " theory of existence or to 
achieve a " real " description of " life as it actually is," is a 
general phenomenon peculiar to the Western world at the end 
of the nineteenth and beginning of the twentieth centuries. This 
phenomenon finds expression in jurisprudence but it is not 
peculiar to jurists alone. Rather it is a manifestation of an 
intellectual climate and perspective found in all fields of study, 
in all walks of life, and in all attempts to describe " reality." 
Whether " reality " is thought to consist of a normless factualism 
or of abstractions, life tends to be robbed of all meaning. Both 
lead to nihilism. 

But if the liberal ideology is emptied of all substantive meaning 
by the infiltration of positivism into all realms of thought, the 
liberal way of life is undermined by the gradual disappearance 
of individual autonomy and initiative in social and economic life. 
Social and economic conditions that emphasize the undesirability, 
if not the impossibility, of individual autonomy and initiative 
challenge in fact the individual freedom that positivism challenges 
in theory. 

Problems that were once in fact individual problems amenable 
to individual solutions became in the nineteenth century social 
problems requiring social solutions. More and more individuals 
turned, of necessity, to organization in an effort to do collectively 
what they were once able to do alone. And more and more 
activities required more complex social organization for their 
successful accomplishment. And as conditions proved less and 


less amenable to individual efforts, the ideal of individual effort 
itself appeared necessarily impracticable. The ideal of indivi- 
dual liberty appeared to be either illusory or meaningless. As 
Niemeyer aptly observes : 

In proportion as social conditions condition a type of individual 
incapable of autonomous and independent decisions, individuals lose 
the faculty of judging the value of political actions by a yardstick of 
non-political derivation. Political power, being the instrument of 
the centralmost coordination of social energies, becomes identified 
with his existence. He ceases to be aware of standpoints from which 
to measure the value of political facts, other than by their political 
successfulness. All this tends to eliminate the humanistic criterion of 
value from our system of social standards. 10 

Without the ideal of the absolute value of human personality, 
without an environment congenial to the exercise of individual 
autonomy and responsibility, liberalism had, of necessity, to 
disappear as a dominant and effective ideology. 


The philosophy of individualism demands not only an 
appreciation of the subjective interests and wills of individuals 
but also a recognition of objective limits to those interests and 
wills. When the link between subjective interests and objective 
limitations is destroyed individualism degenerates into an irre- 
sponsible subjectivism into anarchy. When all substantive 
limitation to individual will is removed, the way is prepared, 
and of necessity, either for anarchy or for tyranny. It was the 
degeneracy of liberalism that made tyranny in Germany possible, 
if not indeed, inevitable. It was the degeneracy of liberalism 
that fostered the irresponsibility, the arbitrary compulsion, against 
which liberals originally rebelled. Perhaps the fatal mistake of 
liberalism was the optimistic attempt to equate sin with ignorance. 
Describing contemporary liberals Lewis Mumford says : 

Their colour-blindness to moral values is the key to their political 
weaknesses. Hence they cannot distinguish between barbarism and 
civilization. . . . Refusing to recognize the crucial problem of evil, 
the pragmatic liberals are unable to cope with the intentions of evil 
men. They look in vain for mere intellectual mistakes. . . . Evil 
. . . has no positive dimensions. 11 

And Aurel Kolnai observes : 

In its cult of " relativism," " tolerance," and " indiflerentism," in 
its explanation of social phenomena by " psychology," or by a sue- 


cession of different " modes of general outlook " or world attitudes of 
mind, the Liberal Spirit has definitely over-reached itself. 

Here is a mood of meek generosity and arbitrary irresponsibility, 
which throws the door wide open to the wildest subjectivism on the 
one hand and arbitrary despotism on the other ; subjectivism in 
those who delight in the pose of comfortable inertia and aesthetic 
passivity ; despotism in those who are unable or unwilling to accept 
that pose. 

Mincing criticism ends in shameless irrationalism ; over-refined 
scientific scepticism in brutal pragmatism ; distrust of the mind, in 
a return to fetishistic tribalism ; " breadth of mind " in the cowardly 
acceptance of tyranny and class or national exclusiveness. 12 


Lacking the capacity to make value judgments the degenerate 
liberal has no means of protecting the individual rights which 
integral liberals fought with conviction to establish. Liberalism 
destroyed its own convictions by denying validity to conscience 
in its attempt to be scientific. Without a common knowledge of 
objective truths and values, liberalism cannot help but degenerate 
into anarchy. And anarchy manifests itself politically in tyranny. 

The political success of the National Socialist movement in 
Germany can best be understood as a corollary of the failure of 
liberalism to retain its substantive content. The political success 
of the movement is best characterized, as has been done by 
Hermann Rauschning, as "the revolution of nihilism." 13 

So long as men find some correlation between the ideals of 
the dominant ideology of a period and the institutions that are 
established to translate these ideals into actuality the order which 
results appears rational, understandable, secure, and healthy. 
When, however, the institutions no longer appear to fulfil the 
promises for which they were created the order dissolves into 
anarchy, the system appears irrational, breeding insecurity and 

Liberal political and economic institutions held out to men 
the promise of freedom and equality. When, in the nineteenth 
century, freedom degenerated into license, when substantive 
equality of opportunity degenerated into formal equality before 
the law, men began to lose their faith in liberal political institu- 
tions. Even the values upon which the liberal order were based 
seemed to many illusory, if not, indeed, non-existent. 

Believing against belief, the German people turned to men 
who promised to bring order out of chaos, to men who promised 
them some sense of security, to men whose programme consisted 
of negative criticisms of a system already in ruins. If the Nazis 


gave the German people nothing which they could positively 
affirm, at least they provided criticisms of a degenerate liberal 
system which nearly all could acclaim. It was not that the 
people believed in National Socialism so much as that they dis- 
believed in the promises of the liberal era. Fascism, as one 
author has ably demonstrated, came in by default. 14 

With the values of the liberal era destroyed long before Hitler 
ever came upon the scene the great mass of German people were 
prepared to will to believe in a new authority that promised by 
the mere act of homage to restore a feeling, at least, of certainty. 
As pragma tists they were prepared to act "as if " Hitler were 
always right. And it is upon this fiction of the infallibility of the 
leader, upon this " as-if idealism," that the structure of National 
Socialism rests. It will collapse only when the fiction itself is 
abandoned. To maintain that fiction is one of the essential 
tasks of the Propaganda Ministry and of the military organization. 
Only decisive military defeat can shake this fiction of infallibility 
only then will the German people be able to perceive other 
alternatives to a tyranny they accept now as the only alternative 
to chaos. 

Disillusioned with the promises of liberalism (and of socialism), 
disillusioned with the processes of reason itself, the German people 
have hoped, however unwisely, to create a new reality simply 
by emotionally affirming its existence. In their despair they have 
chosen to place their faith in the infallibility of Hitler ; and that 
faith, however paradoxically, is renewed, as Peter Drucker has 
pointed out, from the depths of an ever increasing despair. Now 
they believe that they must believe in Hitler or perish. This 
apparent paradox is explained by Drucker in this way : 

The masses must have something. . . . Though they are deeply 
dissatisfied with what totalitarianism has to offer, they cannot get 
anything else. Therefore totalitarianism must be the valid answer. 
The less satisfied they arc with what it gives, the more must they try 
to persuade themselves that it is enough. . . . They are deeply 
unhappy, deeply disappointed, deeply disillusioned. But they must 
force themselves with all their power to believe in totalitarianism just 
because they are disillusioned and dissatisfied. . . . They are like 
drug addicts who have to take increasing doses of the poison, knowing 
it is poison, but unable to give it up because they must find oblivion 
and the happiness of the dream. . . . 

The intellectual tension of this constant self-persuasion to believe 
against belief, to trust against evidence, and to cheer spontaneously 
after careful rehearsal is so great that no amount of self-doping could 
keep it from snapping. An entity must be found in which the contra- 


diction resolves itself. Since there can be no entity within the realm 
of reason, it must be found in that of mysticism. . . . And since the 
totalitarians have no God, they must invent a Demon, a superman and 
magician in whom the contradictory becomes one. To be this demon 
in whom wrong is right, false true, illusion reality, and emptiness 
substance is the function of the " leader." 16 

Real consent is a spontaneous expression of approval. It is 
a positive force arising out of inner conviction. It is not synony- 
mous with passive acquiescence or voluntary submission. It is 
found as the basis of government in greater proportion to con- 
straint only in nations where there is a community of values and 
interests, that is, where there is positive affirmation of certain 
fundamental values and interests common to nearly all individuals 
and groups within the nation. It is, indeed, the existence of this 
community of values and interests that makes democratic, parlia- 
mentary government possible. A minority will agree to tempor- 
ary rule by the majority only because certain common interests 
in maintaining the political system transcend partisan interests. 
The breakdown of democracy comes when this community of 
values disintegrates, when common agreement on fundamentals 
no longer exists, when partisans no longer endeavour to work 
through the state but to become the state. 

The existence of real consent implies the existence of some 
common values and interests. It is this fact which makes it 
impossible for the Nazi government to secure real consent for its 
rule ; it helps to explain why terroristic tactics, centralized prop- 
aganda control, and the extension of political supervision over 
all phases of life are necessary elements of Nazi rule. For it was 
only with the breakdown of a common set of values and interests 
that the Nazis were able to come to power. Dictatorship, despite 
its ostensible appearance of order, is actually the government 
peculiar to anarchy. 

Totalitarian dictatorship is the political manifestation of 
nihilism. It emerges when the belief is dominant that : 

Life has no " aim." Mankind has no " aim ". . . . Life is the 
beginning and the end . . . life has no system, no programme, no 
reason ; it exists for itself and by itself ... it cannot be dissected 
according to good or bad, right or wrong, useful and desirable. 16 

That belief became dominant in Germany with the disintegration 
of integral liberalism, with the infiltration of positivism into every 
realm of thought. 

The forces that produced the Nazi dictatorship in Germany 


were and are not peculiar to Germany alone. National Socialism, 
the totalitarian dictatorship, is not peculiarly a national, geo- 
graphical, or temporary aberration. The same forces are at work 
in every other nation of the Western world. The spiritual crisis 
out of which totalitarianism emerged is a crisis peculiar, not to 
Germany, but to Western civilization. 



1 Karl Mannheim, Ideology and Utopia (translated by L. Wirth and E. Shils, 
1936), p. 3- 

2 Perception itself involves selection and choice. Of necessity perception 
demands the ordering of sensory data into some meaningful pattern. No 
individual is equally aware of all the possible data that may be brought to 
his attention by means of his sense organs. If he were, he would perceive 
nothing, his environment would appear as a chaos of sensations, unintelligible 
and meaningless. It is by a process of selection that perception itself is 
possible. The relative value attached to sensory data depends in part upon 
the context in which they appear and in part upon the individual's insight into 
the situation of the moment. (Cf. Wolfgang Kohler, The Place of Value in a 
World of Facts, 1938.) 

8 Thus, a " fact," as Professor L. J. Henderson defines it for the purposes 
of the scientist, is " an empirically verifiable statement about phenomena in 
terms of a conceptual scheme " (quoted by Crane Brinton, The Anatomy of 
Revolution, 1938, p. 19). Science itself is premised upon certain metaphysical 
assumptions which for its purposes it must accept as true ; see A. N. White- 
head, Science and the Modern World (1925). Science is a method of thought, 
" a creation of the human mind, with . . . freely invented ideas and con- 
cepts." Like every method of thought it is based upon certain presuppositions 
that provide a framework in terms of which " facts " may be observed and 
ordered. See Albert Einstein and Leopold Infcld, The Evolution of Physics : 
The Growth of Ideas from Early Concepts to Relativity and Quanta (1938). 

4 Whitehead, op. cit., p. 71. 

6 Reinhold Niebuhr, The Nature and Destiny of Man (1941), Vol. I, p. GK 
Whitehead, op. cit. 9 p. 83. 

7 Ernest Troeltsch, " The Ideas of Natural Law and Humanity in World 
Politics," in Otto Gierke, Natural Law and the Theory of Society, /joo to 1800 
(translated by Ernest Barker, 1934), p. 205. 

8 Hugo Grotius, Prolegomena, Bk. I, Ch. i, sec. xi (Whcwcll's cd., 1853). 

9 Roscoe Pound, The Spirit of the Common Law (1921), p. 88. 

10 Ibid., p. 89. 

11 Loc. cit. Italics mine. 

12 Quoted by Pound, op. cit., p. 90. Italics mine. 

12a For further explanation of the merging of these two theories of law see 
Gerhart Niemeyer, Law Without Force : The Function of Politics in International 
Law (1941), Ch. iv. In part he says : 

" The vain attempts, during the sixteenth century, to achieve a religious 
peace both of arms and of minds, resulted in a widespread abandonment of 
the theological approach to problems of world order, and the corresponding 
growth of a belief in ' scientific ' methods of solving these problems. Scientific 
methods meant on the one hand the application of rational arguments instead 
of those based on revelation ; on the other hand it meant that problems had 
to be analysed and solved in terms of observed facts and perceivable experi- 
ence. According to this shift of emphasis from mysticism to * realism,* and 
from religion to science, the main object of analysis and investigation became 
necessarily the empirical reality of nature. In the case of legal problems this 
meant the focusing of attention on the empirical nature of man. . . . 



" Following the discovery of the dynamics of the Ego during the Renais- 
sance, and following the anthropological trends in Humanism, the idea was 
established that the immutable reality underlying all social and legal problems 
was the nature of individual man. In accordance with this ' natural ' essence 
of every order, it was believed that inherent in human nature were certain 
fixed conceptions, certain laws of social structure and relationships, which 
called everywhere for the same basic forms of morality, legal order and 
economic conditions. Thus the focal point of all thinking in moral and social 
sciences became the individual person, typified and standardized through the 
conception of ' man in the state of nature.' 

" If legal and political thinking begins by positing the notion of a solitary 
individual and then proceeds to compose society of a multitude of Robinson 
Crusocs, the first and basic assumption must logically be that of the natural 
liberty of the individual persons. . . . From the notion of originally free and 
independent wills of originally separate persons to the idea of legal order there 
leads only one logical way : that of the voluntary submission of the individual 
person to common authority or to common rules. The idea of contract ... is 
the only possibility of making compatible the concept of ' natural ' freedom 
with that of legal bonds" (ibid., pp. 139-40). 

But self-sufficient as this theory was it was not the sole source of the integral 
liberal's conception of law. For there lingered in the early liberal's mind the 
medieval conception that law is " the very essence of things, eternally under- 
lying all relationships, independent of personal desires or wills. Law is not 
made, at any rate not by human wills ; it is in being because the creation in 
itself is ordered and cannot be imagined in any other way but in orderly 
structure. Law is not created : it is recognized by human reason. It is 
inherent in the nature of created things, and has only to be found and brought 
to light, in which process the human will may play an auxiliary role as an 
agent of practical formulations applied to concrete circumstances " (ibid., 
p. 144). These two theories of law, though logically independent, were 
merged by the force of historical circumstance into one conception. " The 
tenets of Christian faith were still too powerfully dominant to admit the 
conception of legal order entirely in terms of personal wills and personal 
interests. A legal order consisting merely in a mutual adjustment of interests 
on the basis of expediency would not have appeared as binding to the Christian 
mind of those times. Thus, torn and undecided between two eras, the 
seventeenth century mind had to merge the medieval idea of an absolute 
order as the essence of reality with the Renaissance conception of the individual 
person as the ultimately moving force in legal order. The merger . . . was 
not dictated by logical necessity, but by emotional forces which, though con- 
flicting, coincided in the mentality of the seventeenth century " (ibid., pp. 

13 See Max Weber, The Protestant Ethic and the Spirit of Capitalism (trans- 
lated by Talcott Parsons, 1930). Capitalism is something more than a mode 
of production. It is as much a mode of thought as it is a technological system 
of production. Capitalism as an economic system was as dependent upon the 
individualistic Weltanschauung that emerged with the Renaissance and Reforma- 
tion as was liberalism. 

14 Cf. Hermann Heller, Die politischen Ideenkrise der Gegenwart (1926), p. 19. 
16 Edmund Wilson, AxeVs Castle : A Study of the Imaginative Literature of 

1870-1930 (1931), p. 3. 

16 Troeltsch, op. cit., p. 210. 

17 Loc. cit. 

18 Troeltsch, op. cit., p. 212. 

19 Loc. cit. 

20 Troeltsch, op. cit., p. 214. 


21 Wilson, op. tit., p. 6. 

22 Pound, op. tit., pp. 151-2. 
28 Ibid., p. 151. 

24 Fritz Ermarth, The New Germany : National Socialist Government in 
Theory and Practice (1936), p. 5. 

25 Ermarth aptly observes that " the legal state was a mechanism devised 
primarily to achieve and maintain the supremacy of the law. It pretended to 
be the human instrument of a superhuman idea of law. But the idea of law 
could serve as ethical justification for the existence of state power only as long 
as the law maintained its vital connection with the idea of justice (Recht). 
As the final and most important result of the economic development, this 
vital connection between the legal state and the idea of justice was destroyed. 
Social inequality and social injustice brought about by capitalism transformed 
the principle of equality that had served as an ethical basis for the legal state 
into a purely formalistic concept. The efforts of the legal state to provide 
justice among individuals were deprived of their ethical meaning through a 
growing social injustice. Material injustice and inequality among the social 
groups increased in spite of and even because of the rules that were enforced 
among the individuals by the state in the name of law and justice " (op. cit., 
p. 22). 



1 A. D. Lindsay, " Individualism," Encyclopaedia of the Social Sciences 
(hereafter cited as E.S.S.), (8 vol. edition, 1937), Vol. IV. 

2 Ibid. 

3 Ibid. 

4 Ibid. 

* Albert Einstein and Leopold Infeld, The Evolution of Physics : The Growth 
of Ideas from Early Concepts to Relativity and Quanta (1938), pp. 57-8. 
Ibid., p. 58. 

7 Quoted by Einstein and Infeld, ibid., p. 58. 

8 See ibid., pp. 71 ff. 

9 See A. N. Whitehead, Science and the Modern World (1925), pp. 145 flf. 

10 W. M. Horton, Realistic Theology (1934), p. 117. 

11 See E. C. Moore, An Outline of the History of Christian Thought Since 
Kant (1912), Ch. m. 

12 Horton, op. tit., p. 119. 

18 Adam Smith, Wealth of Nations (Cannan edition, 1904), Bk. IV, Ch. i, 
p. 421. 

14 Charles Gide and Charles Rist, A History of Economic Doctrines from the 
Time of the Physiocrats to the Present Day (translated by R. Richards, 1916), p. 89. 

15 Smith, op. cit., Bk. V, Ch. i, part iii, art. i. 

16 Gide and Rist, op. cit., p. 96. 

17 See J. B. Say, Le Traiti d'Jconomie politique (1803) ; F. Bastiat, Les 
Harmonies tconomiques (1850) ; I. A. Schlettwein, " Theuersten Vater und 
Mutter der Staaten," in Schriften fur alle Staaten zwr Aufkldrung der Ordnung 
der Natur in Staatsregierungs- u. Finan&uesen (1775) ; C. J. Kraus, Staatswirtschaft 
(1808) ; A. F. Luder, Uber Nationalindustrie und Staatswirtschaft (1800) ; and 
see particularly J. P. Kohler, " Staat und Gesellschaft in der deutschen Theoric 
der auswartigen Wirtschaftspolitik und des internationalen Handels von 


Schlcttwcin bis auf Fr. List und Prince-Smith," Beihefte zur Vierteljahrsckrifl 
fur Social- und Wirtschaftsgeschichte, VII (1926). 

18 Kohler, op. cit., pp. 22-46. 

19 See H. Heller, Die politischen Ideenkrise der Gegenwart (1026), p. 81. 

20 Quoted by Heller, ibid., p. 82. 

21 Cf. Kohler, op. cit., p. 63. 

22 Cf. ibid., pp. 50-1 16. 

23 Ibid., p. 117. 

* 24 G. H. Sabine, A History of Political Theory (1937), pp. 432-3. 
26 Wilhelm von Humboldt, Idem zu einem Versuch die Grenzen der Wirk- 
samkeit des Staates w bestimmen (1851), p. 15. This work was written in 1791 
but published as a whole posthumously. Portions of it appeared at the 
time it was written in Schiller's Thalia and the Berlin Monatsheft. 

26 Kant, Grundlegung zur Metaphysik der Sitten (R. Otto, ed., Gotha, 1930), 
Sec. II. 

27 Fichte, " Grundlage des Naturrechts nach Principien der Wissenschafts- 
lehrc," Sdmmtliche Werke (1845), Vol. Ill, p. 101. This work first appeared 
in 1796. Fichte was born in 1762 and died in 1814, As an inspired leader 
he did much to stimulate the national consciousness of the German people. He 
not only accurately reflected the mentality of his time but actually did much 
to shape it. 

28 Crane Brinton, " Natural Rights," E.S.S., Vol. VI. 

29 Ibid. 

30 Ibid. 

31 " Two Treatises of Government," The Works of John Locke (i2th ed., 
1824), Vol. IV. Bk. II, Ch. n, sec. 6. Locke regarded property as an 
essential attribute of personality. See Bk. II, Ch. v. The ideal of laissez- 
faire philosophy was economic democracy. 

32 Ibid. 

33 See Locke, op. cit., Bk. II, Ch. xix, sec. 221. 

34 Sec Brinton, op. cit. 

35 Rousseau, The Social Contract (translated by H. J. Tozer, 3d ed., 1902), 
Bk. I, Ch. iv. Italics mine. 

38 Quoted by Fritz Berolzheimcr, The World's Legal Philosophies (translated 
by R. S. Jastrow, 1912), p. 160. 

37 Christian Wolff, Jus naturae methodo scicntifica pertractatum (1740-1749), 
Part I, pars. 23 if., 64, 72 ; Chs. n-iv. Quoted by Berolzheimer, ibid., p. 161. 

38 Humboldt, op. cit., p. 107. 

39 Fichte, op. cit., p. 94. 

40 Loc. cit. 

41 Voltaire, PensSes sur V administration publique. Quoted by Hermann 
Heller, Europa und der Fascismus (2d ed., 1931), p. 17. 

42 As one writer states this view : " . . . the real problem is not that of 
arriving at an organization of society and the state under which these two 
would grant freedom to human personality, but rather the problem of confirm- 
ing the freedom of the personality against the unlimited authority of society 
and the state. This means that true freedom has a spiritual rather than a 
social origin ; it is defined by its Ufeing rooted in the spiritual rather than the 
social world." Nicholas Berdyaev, The Fate of Man in the Modern World 
(translated by D. A. Lowric, 1935), p. 42. 

43 Grotius, De Jure Belli ac Pads (Whewell's ed., 1853), Bk. I, Ch. I, sec. 10. 
A similar idea had already been expressed by Gabriel Biel in the fifteenth 
century when he wrote : " si per impossibile deus non esset, qui est ratio divina, 
aut ratio ilia divina essct crrans : adhuc si quis agerct contra rectam rationem 
angelicam vel humanam aut aliam aliquam, si qua csset peccaret . . ." 
Quoted by Wilhelm Dilthey, " Weltanschauung und Analyse des Menschen 


seit Renaissance und Reformation/' Gesammelte Schriften, Vol. II, p. 279, 
note i. 

44 Grotius, op. cit., Prolegomena, sec. 16. 

45 Ibid., sees. g-n. 

46 Reinhold Aris, History of Political Thought in Germany from 1789 to /fl/j 

(1936), P- 70- 

47 Roscoe Pound, "Jurisprudence," E.S.S., Vol. IV. 

48 Ibid. 

49 Jean Bodin, Les Livres de la Rlpublique (1583), Bk. I, Ch. vm. 

50 See Shepard's article, " Sovereignty at the Crossroads," Political Science 
Quarterly (1930), pp. 580 ff. 

51 Quoted by Shepard, op. cit. 9 p. 582. 

52 Bodin, op. cit., Bk. I, Ch. vm. 

63 Locke, op. cfc^Bk. II, Ch. xi, sec. 135. 

64 Ibid., Ch. xvni, sec. 202. 

56 Quoted by Gide and Rist, op. cit., p. 8. 
66 Loc. cit. 

57 Gide and Rist, op. cit., pp. 9-10. 

58 Horton, op. cit., p. 82. 

59 Quoted by Gide and Rist, op. cit., p. 93. 

60 Humboldt was born in 1767 and died in 1835. The Ideen was published 
posthumously in Berlin in 1851. It had been written originally in 1791. 
Humboldt served for a year (1790-1791) on the High Court in Berlin. He 
resigned the post and spent the next ten years travelling and writing. He was 
an intimate friend of Schiller, Goethe, and Wolfl", and moved about in the 
best intellectual and social circles. In 1802 he was sent as Prussian ambassador 
to the Papal Court in Rome where he stayed for six years. In 1808 he became 
Prussian minister of worship and public instruction, an appointment which 
was curious enough since he had opposed in his earlier writings any state 
solicitude for religion or education. The ministry was abolished in 1810 but 
Humboldt was instrumental in founding the University of Berlin. He was 
appointed ambassador to Austria, attended the Congress of Vienna, and in 
1818 became Prussian minister of the interior. Strongly opposing the Carls- 
bad decrees and constantly urging the establishment of constitutional govern- 
ment, he made himself unpopular with his ministerial colleagues, as well as 
with the cabinets in Vienna and Petersburg, and finally resigned his post to 
retire on a pension. 

61 Humboldt, op. cit. 9 p. 3. 

62 Loc. cit. 

68 Humboldt, op. cit., p. 17. 
64 Ibid., p. 18. 
66 Ibid., p. 19. 

86 Loc. cit. 

87 Humboldt, op. cit., p. 15. 
68 Ibid., p. 20. 

89 Ibid., p. 22. 

70 Ibid., p. 23. 

71 Ibid., p. 39. 

72 Ibid., p. 46. 

73 Ibid., p. 45. 
74 /Wrf., p. 75. 
75 Ibid., p. 82. 
78 Ibid., p. 101. 

77 See ibid., p. 105, and Ch. xiv. 

78 Ibid., p. 103. 

79 As Hermann Heller describes this notion of law : " Unter Gesetz aber 


versteht man je langer je mehr nicht den Willen eines personlichen Gottes 
oder gottbegnadeten Monarchen, sondern die iiber alle Willen und jedwede 
Willkur erhabenc Norm ; den Inhalt dieser Gesetze will man in zunehmenden 
Masse aus dem diesseitigen und vernunftig erkennbaren Sein von Natur und 
Gesellschaft ablesen." Rechtsstaat oder Diktatur? (1930), p. 7. 

80 C. H. Mcllwain, " The Fundamental Law behind the Constitution of the 
United States," in Conyers Read (ed.), The Constitution Reconsidered (1938), p. 3. 

81 Loc. cit. 

82 Mcllwain, op. cit., p. 7. 

83 Bracton, De Legibus et Consuetudinibus Angliae (Twiss, ed., 1854), f- 5*- 
Quoted by E. S. Gorwin, " The fc Higher Law ' Background of American 
Constitutional Law," Harvard Law Review (1928), Vol. 42, pp. 149-85* 365-49- 

84 Mcliwain, op. cit., p. 5. 
86 Loc. cit. 

86 Fichte, op. cit., p. 103. 

87 Loc. cit. 

88 Fichte, op. cit., p. 104. 

89 Ibid., p. 105. 

90 Ibid., p. 1 06. 

91 Sec ibid., pp. 106 (T. 

92 Ibid., p. 106, et passim. 

93 Ibid., pp. 108-9. 

94 Ibid., p. 109. 

96 See ibid., p. 159. 

96 See ibid., pp. 160 ff. 

97 F. W. Kaufmann, " Fichte and National Socialism," American Political 
Sciefice Review (Juno, 1942), p. 460. 

98 Ibid., p. 470. 

99 Giuseppe Mazzini, The Duties of Man (1858). Quoted by Irwin Edman, 
Fountainheads of Freedom (i940> PP- S 12 "^- 

100 Ibid., p. <)i7. 

101 Otto Bahr, Der Rechtsstaat : Eine Publiclstische Ski^e (1864), p. 8. 

102 Rudolph von Gncist, %ur Verwaltungsreform und Verwaltungsrechtspflege 
in Preussen (1880), p. 50. 

103 See idem, Der Rechtsstaat (1872). 

104 Sec Robert von Mohl, " Gcsellschaftswisscnschaft und Staatswissen- 
schaft," Zeitschrift fur die gesammte Staatswiswischaft (1851), Vol. 7 ; Lorenz 
von Stein, System der Staatswissenschaft (1856) ; and idem, Der Begriff der Gesell- 
schaft (1855). 



1 Erast Trocltsch, " The Ideas of Natural Law and Humanity," in Otto 
Gierkc, Natural Law and the Theory of Society 1500 to 1800 (translated by Ernest 
Barker, 1934), p. 211. 

1 Loc. cit. 

3 Loc. cit. 

4 Troeltsch, op. cit., p. 213. 

6 Ibid., p. 218. 

6 A. N. Whitehead, Science and the Modern World (1925)- 


7 E. S. Corwin, "The c Higher Law* Background of American Constitu- 
tional Law," Harvard Law Review, Vol. 42 (1928), p. 382, note 59. 

* Ibid., p. 408. 

9 E. B. Ashton, The Fascist : His State and His Mind (1937), p. 127. 

10 Ibid., p. 132. 

11 Ibid., p. 133. 

12 Nicholas Berdyaev, The Fate of Man in the Modern World (1935), p. 46. 
18 Ibid., p. 44. 

14 When contemporary " liberals " talk about the rule of reason they tend 
to forget this. It is frequently suggested that difficulties between various 
interest groups, between capital and labour for example, could be solved if only 
they would agree to sit around a conference table and confer as " reasonable " 
men. This would only provide a solution, however, if the conferees agreed to 
reason from the same premises and to accept the same set of values. Reason- 
ing from different premises they would arrive at equally reasonable but widely 
divergent conclusions. 

16 Roscoe Pound, Interpretations of Legal History (1923), pp. 9-10. 
18 Ibid., p. ii. 

17 Ibid., p. 12. 

18 Roscoe Pound, The Spirit of the Common Law (1921), p. 142. 

19 Ibid., p. 143. 

20 F. K. Savigny, Of the Vocation of Our Age for Legislation and Jurisprudence 
(translated by A. Hayward, 1831), p. 30. 

21 Ibid., p. 24. 

22 N. M. Korkunov, General Theory of Law (translated by W. G. Hastings, 
*9<>9)> PP- 1 20-1. 

23 Immanuel Kant, Metaphysische Anfangsgrunde der Rechtslehre (K. Vor- 
lander, ed., 1907), Introduction, paragraphs A, B. 

24 Pound, Spirit of the Common Law, pp. 151-2. 

26 Ibid., pp. 153-4. 

2e Pound, Interpretations of Legal History, p. 98. 

27 C. F. Puchta, Outlines of Jurisprudence as the Science of Right A Juristic 
Encyclopedia (translated by W. Hastie, 1887), p. 26. 

28 Ibid., pp. 30-1. 

29 Max Lerner, " Social Process," E.S.S., Vol. VII. 

* Ibid. 

81 Hegel, Grundlinien der Philosophic des Rechts (1821), sec. 278. 

82 Rupert Emerson, State and Sovereignty in Modern Germany (1928), p. 14. 

83 A. N. Whitehead, Adventures of Ideas (1933), p. 41. 

84 Ibid., p. 45. 

85 Loc. cit. 

86 " Society," E.S.S., Vol. VII. 

87 Jhering, Law as a Means to an End (translated by I. Husik, 1913), p. liv. 

88 Ibid., p. 242. 

89 Ibid., p. 380. 

40 Ibid., p. 239. 

41 Ibid., p. 73. 

42 Loc. cit. 

48 Jhering, op. cit., p. 404. 

44 Ibid., p. 28. 

45 Guido de Ruggiero, " Positivism," E.S.S., Vol. VI. 
48 Loc. cit. 

47 Loc. cit. 

48 Science, as Whitehead has so well stated, rests in the last analysis upon 
an " instinctive faith that there is an Order of Nature which can be traced in 
every detailed occurrence." He goes on to say that we all share this faith 


and " believe that the reason for the faith is our apprehension of its truth. 
But the formation of a general idea such as the idea of the Order of Nature 
and the grasp of its importance, and the observation of its exemplification 
in a variety of occasions arc by no means the necessary consequences of the 
truth of the idea in question." Science and the Modern World, p. 6. See also 
J. W. N. Sullivan, The Limitations of Science (1933), and Wolfgang Kohler, 
The Place of Value in a World of Facts (1938). 

49 Whitehead, Adventures of Idtas, p. 147. 

60 Ibid., p. 159. 

51 Ibid., p. 157. 

62 See Fritz Berolzhcimer, The World's Legal Philosophies (translated by 
R. S. Jastrow, 1912), pp. 308 ff. 


1 Paul Tillich, The Religious Situation (translated by R. Niebuhr, 1932), 
p. 1 08. 

2 Loc. cit. 

3 Tillich, op. cit., p. 136. 

4 Ibid., pp. 19-20. 
& Ibid., p. 20. 

6 Ibid., p. 90. 

7 Nicholas Bcrdyaev, The Fate of Man in the Modern World (translated by 
D. A. Lowric, 1935), p. 46. 

H Sec Max Weber, The Protestant Ethic and the Spirit of Capitalism (translated 
by Talcott Parsons, 1930). 
* Berdyaev, op. cit., p. 43. 

10 Loc. cit. 

11 Quoted by Hermann Heller, Die politischen Ideenkrise der Gegenwart 
(1926), p. 69. 

12 Berdyaev, op. cit., p. 43. 

13 Brinton, " Natural Rights," E.S.S., Vol. VI. 

14 Adam Smith, The Theory of Moral Sentiments (ist American ed., 1817), 
p. 134. 

15 Ibid., p. 382. 

16 Ibid., p. 557, et passim. Italics mine. 

17 Roscoe Pound, The Spirit of the Common Law (1921), p. 161. 

18 Ibid., pp. 161-2. 
10 Ibid., pp. 162-3. 

20 Ibid., p. 163. 

21 Ibid., p. 164. 
21 Loc. cit. 

28 Pound, op. cit., pp. 163-4. 

24 Sec Chapter I, above. 

26 Hermann Heller, Rechtsstaat oder Diktatur? (1930). 

26 G. F. von Gcrber, Grund&ge eines Systems des deutschen Staatsrechts (1865), 

P- 3- 

27 Ibid., p. 4. 

28 Ibid., p. 19. 

2 * Ibid., p. 19, note i. 

30 Here in Gcrber is the suggestion that will may be separated from norm, 
fact from standard. It is the introduction of this duality into jurisprudence 


that made possible the thought of Kelsen, on the one hand, and Carl Schmitt, 
on the other. At the turn of the century there was no other logical possibility 
but to make one or the other absolute. 

81 Gerber, op. cit., p. 29. 

89 Paul Laband, Das Staatsrecht des deutschen Reiches (5th ed., 4 vols., 191 i- 

I 9 l $> Y o1 ' I1C > P- 4- 
33 Ibid., pp. 29-30. 

84 Philipp Zorn, Das Staatsrecht des deutschen Reiches (1880), Vol. I, pp. 

85 Laband, op. cit., Vol. II, p. 186. 

36 Laband, Denticles Reichsstaatsrecht (1907), p. 17. 

87 Georg Jellinek, Allgemeine Staatslehre (sd ed., 1914), p. 386. 

** Ibid., pp. 481-2. 

89 Ibid., p. 482. Italics mine. 

40 H. E. Cohen, I&cent Theories of Sovereignty (1937), p. 144. 

41 Jellinek, System der subjektiven offentlichen Rechte (1905), p. 17. 

42 Ibid., p. 225. 

43 Cf. Heinrich Triepel, Volkerrecht und Landesrecht (1899), p. 78. 

44 Cf. Albert Hanel, Gesetz imformellen undmateriellen Sinne (1888), p. 231. 
46 Kurt Pfeifer, Die Idee der Grundrechte in der deutschen Literatur von 1790 

bis Georg Jellinek (1890) (1930). 

46 Jellinek, System der subjektiven offentlichen Recht, p. 82. 

47 Loc. cit. 

48 Loc. cit. Italics mine. 

49 Jellinek, System der subjektiven offentlichen Rechte, pp. 103 ff. 

50 Ibid., p. 103. 

61 Cf. ibid., pp. 329 ff. 

62 Cf. ibid., pp. 53 ff., 68 ff, 114 ff, and 234 ff. 
" Ibid., p. 53. 

64 Hermann Heller, " Der Begriff des Gesetzes in der Reichsverfassung," 
Veroffentlichungen der Vereinigung der deutschen Staatsrechtslehrer (Heft 4, 1928), 
p. 116. 

55 Quoted by Heller, ibid., p. 112. 


1 C. E. M. Joad, Guide to Philosophy (1936), p. 496. 

2 Quoted by Joad, loc. cit. 
8 Joad, op. cit., p. 532. 

4 Ibid., p. 452. 

6 This philosophy finds expression in America in the well-known writings 
of William James and Charles Peirce. In Germany, where it is known as the 
" Philosophy of * as if/ " its leading exponent was Hans Vaihinger (1852- 


Joad, op. cit., p. 464. 

7 Loc. cit. Italics mine. 

8 From a speech delivered by Ernst Krieck, now Rector of Heidelberg 
University, upon the occasion of the celebration in July, 1936 of the 55Oth 
anniversary of the founding of the university. 

9 In somewhat abstract terms Bott-Bodenhausen explains how will (Indivi- 
dualismus) and norm (Substantialismus ) were bound together as complementary 
elements before their separation by positivism. He writes : " Auf dem 


Rechtsgebiet . . . haben Substantialismus and Individualismus sich zu einer 
Verbindung verhakelt. Diese Verbindung 1st der Formativismus. Er ist 
keine innere Verschmelzung, sondern eine aussere Angleichung. Bald iiber- 
wiegt in diesem Gestaltssystem das substantielle, bald das individuelle Moment. 
Stets aber treten beide gleichzeitig in die Erscheinung, findet das Individuali- 
stische sein Mass in einem Seienden, erhalt ein Seiendes seinen Impuls durch 
ein Individuelles." Manfred Bott-Bodenhausen, Formative* und funktionales 
Recht in der gegenwdrtigen Kulturkrisis (1926), p. 22. 

Kelsen declares : " The contrast between Is and Ought is formal and 
logical and as long as one keeps within the limits of formal and logical con- 
siderations no road leads from one to the other ; the two worlds confronting 
each other are separated by an unbridgeable gulf. Logically the question as 
to the * why ' of some particular Ought can only lead to some other Ought, 
time and again, just as the question as to the ' why ' of some Is can only 
receive as an answer another Is, time and again." Ober Grenzen %wischen 
Juristischer und Soziologisicher Method* (1911), p. 6, quoted by Arnold Brecht, 
" The Myth of Is and Ought," Harvard Law Review, March, 1941, pp. 811-31. 

10 Rudolph Stammler, " Fundamental Tendencies in Modern Jurisprud- 
ence," Michigan Law Review, Vol. 21 (1923), pp. 862 ff. 

11 Ibid. 

12 Stammler, Theorie der Rechtswissenschaft (1911), p. 17. Italics mine. 

13 Rupert Emerson, State and Sovereignty in Modern Germany (1928), p. 163. 

14 Stammler, " Fundamental Tendencies . . . ," p. 863. 

16 Loc. cit. 

li Morris Ginsberg, " Stammler's Philosophy of Law," in Modern Theories 

of Law (i933)* PP- 4 - 1 - 

17 Quoted by Ginsberg, ibid., p. 42. 

18 Stammler, The Theory of Justice (translated by I. Husik, 1925), p. 40. 
lf Ibid., p. 89. 

20 Sec Emerson, op. cit., p. 165. 

21 Stammler, " Fundamental Tendencies . . ." p. 865. 

22 Ibid. 

23 Ibid. 

24 Emerson, op. cit. 9 p. 164. 

25 Ginsberg, op. cit., p. 45. Since Stammler's "idea of justice " is purely 
formal and without any substantive content it provides no criteria for obliga- 
tion. Moral obligation is only possible where certain objective values are 
conceived as existing. Obligation means that you ought or ought not to will 
something ; hence, you have to know what it is you ought or ought not to will. 
A formal " idea of justice " without substantive content doesn't tell you 

26 See Stammler's Wirtschaft und Recht nach der materialistischen Geschichts- 
auffassung fad cd., 1914), p. 554- 

27 Stammler, Theorie der Rechtswissenschaft, p. 27. 

28 W. E. Hocking, Present Status of the Philosophy of Law and of Rights (1926), 
pp. 16-17. 

29 Ibid. , p. 17. 

30 Ibid., p. 18. 

31 Erich Kauftnann, Kritik der neukantischen Rechtsphilosophie (1921), p. 20. 

32 Emerson, op. cit., pp. 168-9. 

33 Hans Kelsen, " Centralization and Decentralization " (translated by 
W. Kraus), in Authority and the Individual (1937), P- 212. 

84 7M/., p. 213. 
Loc. cit. 
3 Loc. cit. 
37 Loc. cit. 


38 Hans Lauterpacht, " Kelsen's Pure Science of Law," Modern Theories of 
Law, pp. iii-i2. 

89 Kelsen, " The Pure Theory of Law " (translated by G. H. Wilson), 
Law Quarterly Review, Vol. 51 (1935), pp. 517 ff. Italics mine. 

40 Ibid. Italics mine. , 

41 Ibid. 

42 Emerson, op. cit., pp. 170-1. 

43 Kelsen, Hauptprobleme der Staatsrechtslehre (1911), p. 465. Quoted by 
Emerson, op. cit. 9 p. 171. 

44 Adolf Lasson, System der Rechtsphilosophie (1882), p. viii. 

45 Quoted by Emerson, op. cit., p. 187. 
48 Lasson, op. cit. 9 p. 288. 

47 Ibid., pp. 289-90. 

48 Quoted by Hopking, op. cit., p. 25. 

49 Kohler, Moderne Rechtsprobleme, p. 1 1. Quoted by Hocking, op. cit., p. 32. 
60 Kohler, Philosophy of Law (translated by A. Albrecht, 1914), pp. 208-9, 


51 Ibid., p. 59. 

52 Ibid., p. 208. 
Ibid., p. 253. 

54 Quoted by Hocking, op. cit., p. 8. 
66 Kohler, Philosophy of Law, p. 36. 

58 Hocking, op. cit., p. 26. 
57 Ibid., p. 30. 

68 Emerson, op. cit., p. 199. 

59 See Fritz Berolzheimer, The World's Legal Philosophies (translated by 
R. S. Jastrow, 1912), pp. 466 ff. 

60 Erich Kaufmann, Das Wesen des Volkerrechts und die Clausala rebus sic 
stantibus (1911)9 p. 138. 

81 Ibid., p. 135. 

82 Of. ibid., pp. 151-2. 

83 Carl Schmitt, Der Begriffdes Politischen (3d ed., 1933). 

84 Aurel Kolnai, The War Against the West (1938), p. 143, et passim. 

85 Schmitt, Verfassungslehre (1928), Ch. in. 
88 Ibid. 

87 Quoted by Hermann Heller, Staatslehre (1934), P- 221 - 


1 Gerhart Niemeyer observes : " . . . the two ways of legal thinking, the 
* essential * and the * personalistic ' approach, represent two systems of theory, 
each complete in itself, based on its own premises and proceeding with its own 
peculiar ideas. Neither of these theoretical systems needs the other one ; 
they are self-sufficient and logically incompatible with each other. One starts 
from the fact of the existence of the individual person, the other starts out from 
the idea of order of the creation. One takes it to be the irrational impulse of 
personal interests which drives the individual to consent to legal rules, the other 
construes law as the consequence of absolute values which force themselves 
upon the recognition of all human beings . . . torn and undecided between 
two eras, the seventeenth-century mind had to merge the medieval idea of an 
absolute order as the essence of reality with the Renaissance conception of the 


individual person as the ultimately moving force in legal order. The merger 
. . . was not dictated by logical necessity, but by emotional forces which, 
though conflicting, coincided in the mentality of the seventeenth century." 
Law Without Force : The Function of Politics in International Law (1941), pp. 145-6. 
See Ch. iv of this work for a more complete discussion of this point. 

2 See the preceding chapter for a more complete analysis. 

3 "... a moment has come when the civilized world, in relation to the 
capacity of the average man, has taken on an appearance of superabundance, 
of excess of riches, of superfluity. A single example of this : the security 
seemingly offered by progress (i.e., the ever-growing increase of vital advant- 
ages) demoralized the average man, inspiring him with a confidence which is 
false, vicious, and atrophying." Ortega y Gasset, The Revolt of the Masses 
OOS 2 )* P- IIO > footnote i. 

4 Paul Tillich, The Religious Situation (translated by Reinhold Niebuhr, 

5 See preceding chapter. To-day " when German judges [trained in the 
liberal tradition] adjudicate . . . ' in National Socialist spirit/ to the extent 
of twisting the letter of existing precepts, this is no mere subservience to a 
political upheaval but an earnest and sincere fulfilment of judicial duty as it 
is now conceived," states E. B. Ashton, The Fascist : His State and His Mind 
(1937), p. 131. He continues : "... the vast majority of the highly con- 
scientious and professionally proud German civil servants adjusted themselves 
to the new doctrine with surprising ease. ... As a matter of fact, what we 
call ' misapplying the law, 1 to the Fascist simply means applying it in accord- 
ance with the principles that made it law. As a great German jurist put it : 
'The will of the State is the soul of the law.'" Ibid., p. 132. Positivist 
" liberal " jurists had been expounding the principle that " the will of the 
State is the soul of the law " for many years prior to 1933. This was no new 
idea. The National Socialist simply took over the positivist " liberal " doctrine 
that law is the command of superior force. 

6 Hermann Heller, Europa und der Fascismus, ad ed. (1931), p. 18. 

7 Ibid., p. 20. 

8 "... when the humanists appeared upon the scene, with their Gospel 
of salvation by scientific research and cooperative effort, the dilemma of 
liberalism became acute. The humanists professed to be the real moderns, 
and it must be admitted that their position represented, in some respects, a 
logically consequent outworking of principles to which liberals themselves 
had appealed in their critique of fundamentalism. . . . Was there in fact any 
shore to which they could return, now that they had cut loose from churchly 
tradition and infallible revelation, and committed themselves to the outcome 
of free inquiry, whatever it might be ? " VV. M. Horton, Realistic Theology 

(1934), PP- 3-4- 
Ibid., pp. 37-8. 

10 Niemeyer, op. */., p. 199. 

11 Lewis Mumford, Faith for Living (1940), pp. 88-9. " The upshot of this 
argument is simple. Good and evil are real, as virtue and sin are real. Evil 
is not just a mental aberration, which pathological characters arc the victims 
of ; and sin is not just a symptom of mental immaturity as the pragmatic 
liberal would have it. Both these optimistic interpretations of sin and evil 
lead always to the flattering conclusion that the intelligent cannot sin and that 
the mentally adult can do no evil. These conclusions are plainly gratifying to 
those who fancy themselves intelligent and mature, because it leads them to 
a supcr-Calvinistic state of grace, in which all things are possible, and what- 
ever one does is blessed. At that point, the pragmatic liberal and the fascist 
meet face to face. And whatever the fascist's contempt for the liberal, there is 
plenty of evidence at hand to prove that the liberal, face to face with fascism, 


can literally not find words to condemn it. This refusal to recognize evil as 
evil has fatally delayed the world's reaction against barbarism." Ibid., p. 82. 

And Reinhold Niebuhr declares : 

" The Utopian illusions and sentimental aberrations of modern liberal 
culture are really all derived from the basic error of negating the fact of 
original sin. This error . . . continually betrays modern man to equate the 
goodness of men with the virtue of their various schemes for social justice and 
international peace. When these schemes fail of realization or are realized 
only after tragic conflicts, modern men either turn from utopianism to disillusion- 
ment and despair, or they seek to place the onus of their failure upon some 
particular social group or upon some particular form of economic and social 

" Obviously there are varying degrees of sin and guilt and some men and 
nations are more guilty than others of c disobedience to the heavenly vision.' 
Also there are specific evils in history, arising from specific maladjustments 
in social and political organization. But these evils can be dealt with most 
adequately, if men do not give themselves to the illusion that some particular 
organization of society might be found in which men would no longer stand 
in contradiction to the law of their own being. Furthermore, particular 
virulent forms and types of sin in particular men and nations can be checked 
most successfully if it is recognized that these types are but aggravations of 
a general human situation. 

" Both modern liberalism and modern Marxism are always facing the 
alternatives of moral futility or moral fanaticism. Liberalism in its pure form 
usually succumbs to the peril of futility. It will not act against evil until it is 
able to find a vantage point of guiltlessness from which to operate. This 
means that it cannot act at all. Sometimes it imagines that this inaction is the 
guiltlessness for which it has been seeking. A minority of liberals and most 
of the Marxists solve the problem by assuming that they have found a position 
of guiltlessness in action. Thereby they are betrayed into the error of fanati- 
cism. The whole history of modern culture, particularly in its more recent 
efforts to defend itself against inferior and more demonic cultures, is a pathetic 
revelation of the weakness and confusion which result from these illusions about 
the character of man." The Nature and Destiny of Man (1941), Vol. I, p. 273, 
footnote 4. 

12 Aurel Kolnai, The War Against the West (1938), p. 15. 

18 Hermann Rauschning, The Revolution of Nihilism : Warning to the West 


14 Stephen Raushenbush, The March of Fascism (1939), Ch. VH. 

15 Peter Drucker, The End of Economic Man : A Study of the New Totali- 
tarianism (1939), pp. 227 ff. 

16 Oswald Spengler, Politische Schriften (1934), pp. 85-6. Quoted by 
Melvin Rader, No Compromise : The Conflict between Two Worlds (1939), p. 304. 


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Administrative control, liberalism 

and, 47-50 
Arnim, 58 
Ashton, E. B., 55 
Assumptions, and thought, 2 
Authority, and personality, 6-7 
Autocracy, 43 
Autonomy, individual, disappearance 

of, 19-20 

Bahr, Otto, 48, 49 
Barth, Karl, 116 
Bentham, J., 31, 64 
Berdyaev, N., 55, 72, 73 
Berolzheimer, F., 102, 103 
Biology, 1 6 

Bourgeoisie, igth-century, and liberal- 
ism, 16-17 
Bracton, 43 
Brentano, 58 
Brinton, Crane, 74 
Brotherhood of Man, 62 

Capitalism, liberalism and, 12-14 5 

and progress, 71 
Carlsbad decrees, 13 
Coercion, as characteristic of law, 17, 

64, 101 ; see also Compulsion 
Cohen, Chapman, 87 
Compulsion, 10 ; as criterion of law, 


Comte, Auguste, 61, 67-8 
Conscience, 7, 10, 37, 107, 109 
Constitutional government, 43 
Corporations, freedom for, 27 
Cubism, 1 14-15 
Cultures, particular, and law, 100-3 

Dahlmann, ix 
Dalton, John, 26 
Darwin, C., 62, 75 
Decadence of liberalism, xi 
Despotism and autocracy, 43 
Drucker, Peter, 119 

Economics and individualism, 27 ; 

"pure," 114; self-sufficiency of, 


Emerson, R., 91, 93, 95, 97, 103 
Environment, effects of, 1-3 
Ephorate, 45 
Equality, formal, and freedom, 73 ; 

19th-century idea of, 57 
Ermarth, Fritz, 19 
Expressionism, 114-15 

Feudalism, 5 

Fichte, J. G., 12, 29, 33, 44-6, 47, 82 

France, Anatole, 74 

Freedom, degeneration of, 10 ; for- 
mal, and equality, 73-5 ; indi- 
vidualism and, 33-4 ; law as basis 
f 2 3> 35-9 5 liberalism and, 6 

Functionalism, 24 

Gerber, C. F. von, 18, 77, 78, 79, 90, 

95, * 10 

Gide, C., and Rist, C., 27, 39 
Ginsberg, 92, 93 
Gneist, R. von, 48-9 
God, conception of, and individuality, 

21-2 ; and world-order, 4-5 
Grimm, Brothers, 58 
Grotius, 5, 8, 9, 36 

Hanel, A., 83 
Hegel, G. F., 60, 61-2 
Heller, Hermann, 78, 86, 87, 113 
Helmholtz, 25 
Herder, 46 
Hitler, 47, 102, 103 
Hocking, W. E., 93-4, 102 
Hufeland, 28 

Humboldt, W. von, 12, 29, 32-3, 
40-2, 82 

Immanence of God, 14 

Individualism and freedom, 33-4 ; 
liberalism as political expression of, 
21-4 ; and natural rights, 29-33 ? 
pervasiveness of, 24-9 



Individuality and liberalism, 3 ff. 
Injury, 8 
Irresponsibility, 105-6 

Jakob, 28 

Jellinek, G., 18, 77, 78, 81-5, 90, 91, 

95, 1 10 

Jhering, R. von, 64-5 
Joad, G, E. M., 87, 88 
Jurisprudence, formalization of, 76, 


Kant, I., 29, 59, 60, 67, 91 
Kaufmann, F. W., 46, 95, 102, 103 
Kelsen, Hans, x, 18, 91, 95-9, 114 
Kohler, Josef, 100-3, IO 5 
Kohler, W., 28 
Kolnai, Aurel, 104, 117 
Korkunov, N. M., 58 
Kraus, C. J., 28 

Laband, P., 18, 77, 78, 79-81, 86; go, 

Lamarck, 63 

Lasson, Adolf, 99-100, 102-3 

Lauterpacht, 96 

Lavoisier, 26 

Law, as basis of freedom, 35-9 ; 
changed conception of, 53 ; com- 
pulsion as criterion of, 85-6 ; as 
means to an end, 63-5 ; neo- 
Kantian and neo-Hegelian concep- 
tions of, 89 ; positive and natural, 
7 ; " pure " theory of, 91-9 ; State 
as source of, 78-81 ; theories of, in 
liberalism, 109-10 ; as Volksrecht, 
56-61 ; why obligatory, 10 

Legislature, 38 

Liberalism and administrative con- 
trol, 47-50 ; criteria of, 8 ; decline 
of, in Germany, 110-13 ; expres- 
sion of individualism, 21-4 ; for- 
malization of, 14-20, 70-2, 78 ; 
individualism and, 3-6 ; logic of, 
6-12 ; original conception of, 
108-9 ; postulates of, 1-3 ; and 
Rechtsstaat, 39-47 ; sociological 
basis, 12-14 ; theories of law in, 
109-10; without substance, 107-8 

Liberty, natural, 8 
Lindsay, A. D., 22 
Locke, John, 30-1, 38 
Lotz, 28 
Luder, 28 

Machiavelli, 6 

Mcllwain, 43 

Majority, will of, and human rights, 54 

Malthus, 63 

Mannheim, Karl, i 

Marx, 6 1, 62 

Materialism and pragmatism, 87-9 

Mazzini, 46-7 

Metaphysics, decline of, 53, 95 

Middle Ages, 2-5 

Mill,J. S., 29, 31 

Mohl, Robert von, 49 

Miiller, Johannes, 26 

Mumford, Lewis, 117 

Music, 115 

Mussolini, 47 

Nationalism and liberalism, 46-7 
Natural law, 5, 7, 9, 35 ff. 
Natural selection, 62 
Nazis, 107-8 ; Fichte and, 46 
Nazi-ism, meaning of, 1 1 7-2 1 
Neo-Hegelians, 69, 89-91, 99 ff., 

105-6, 1 10, 114, 115 
Neo-Kantians, 69, 89-91, 95 fF., 

105-6, no, 115 
Niebuhr, R., 3 
Niemeyer, G., 117 
Norms, legal, and coercion, 96 ; 

State as system of, 96-8 

Obligation, 7, 77-8, 95 
Order, natural, law as, 38-9 
Ortega y Gasset, J., 1 1 1 

Painting, 114-15 

Parsons, Talcott, 64 

Pasteur, L., 26 

Physiocrats, the, 38-9 

Picasso, P., 115 

Positivism, n, 17, 19 ; emergence of, 

65-9 ; and law, 75-7, 111-13 
Pound, Roscoe, 7-8, 37, 56-7, 59, 




Power, " pure " theory of, 104-5 
Pragmatism and materialism, 87-9 
Private and public spheres, separation 

of, 5-6 

Progress, 63, 71 
Property, 18th-century idea of, 74 ; 

Locke and, 30-1 
Puchta, C. F., 15, 60 

Raison d'etat, 6 

Rau, 28 

Rauschning, H., 118 

Reality, objective and subjective, 

Reason, 4 

Rechtsstaat, 39~47> 4^, 5, 78, 80, 82, 
83,95>98, 99, "3 

Reichstag, 54, 82 

Religion and authority, 39 ; and the 
individual, 26 

Responsibility, freedom and, 33 ; will 
and, go 

Rights, against State, 84-5 ; and the 
State, 60 ; equated with interests, 
53 ; individual, changing concep- 
tion of, 1 8, 53 ; individual and 
legal, 83-5 ; individualism and, 22, 
29-33 ; natural, 7-8 ; rule of, 44 

Rights of Man, Declaration of, 32 

Romanticism, 14-15, 51-2 

Rousseau, 32, 59 

Sabine, G. H., 28 

Sanction, importance in legislation, 


Sartorius, 28 

Savigny, F, K., 15, 52, 57-8 
Schleiden, 26 
Schleiermacher, 26 
Schlettwein, 27 
Schmalz, 28 

Schmitt, Carl, 102, 104, 105 

Schonberg, A., 115 

Schwann, 26 

Science, igth-century, 17, 25-6, 52 ; 
prestige of, and law, 1 1 1-12 

Security, 42, 57 

Shepard, Max, 37 

Smith, Adam, 27, 28, 39, 40, 74-5 

Socialism, 24-5 

Soden, 28 

Sollen and Sein, 69, no 

Sovereign, will of, as law, 80-1 

Sovereignty, 37-8, 81-2 

Spencer, Herbert, 29, 61, 63 

Staatsrechtswissenschaft, 77 

Stammler, Rudolph, 91-5, 102 

State, ends of the, 41-2, 49 ; and free- 
dom, 60 ; as product of organic 
growth, 61-3 ; rights against, 84 ; 
secularization of, 72 ; as self-limit- 
ing, 81-3 ; as source of law, 78-81 ; 
will of, as law, 99-1*00 

Stein, Lorenz von, 49 

Stravinsky, I., 115 

Theology, see Religion 

Thought and basic assumptions, 1-2 

Tillich, 73-4, 1 1 1 

Troeltsch, 4, 15, 5 1, 52 

Utilitarians, 63-4 

Vincke, von, 28 
Volksgeist, 52, 58 
Volksrecht, law as, 56-61 
Voltaire, 35 

Whitehead, A. N., 2, 62, 67 

Will and law, 7, 91 ff. 

Wills, society as community of, 93-4 

Wolff, Christian, 32 

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